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TREATISE 


ON 


Attachment  and  Gaknishient. 


BY 


RUFUS    WAPLES,   LL.D. 

ArxnOK   OF  A   TREATISE   ON    PROCEEDINGS    IN    REM,   AND  A   HANDBOOK 
ON   PARLIAMENTARY   PIWTICE. 


CHICAGO: 

CALLAGHAN     AND     COMPANY. 

1885. 


Entered  according  to  Act  of  Congress,  in  the  year  1885, 

By  CALLAGHAN  &  CO., 

In  the  Office  of  the  Librarian  of  Congress  at  "Washington,  D.  C. 


^ //?/$'(' 


U\ 


PREFACE. 


,  To  render  tliis  work  useful  in  every  State,  I  have  treated  the 
law  and  practice,  so  far  as  they  are  uniform  in  all,  as  consti- 
tuting the  prevalent  system  of  attachment,  susceptible  of  the 
application  of  principles  common  to  all.  Peculiar  provisions 
of  statutes,  anomalous  grounds  and  causes  of  action,  have  been 
considered  as  exceptional. 

That  the  reader  may  see  whether  a  decision  in  exposition  of 
a  statute  is  of  more  than  local  value,  I  have  frequently  cited 
the  latter  with  the  former.  The  practitioner,  needing  to  under- 
stand the  exact  terms  of  a  statutory  authorization,  would  have 
been  little  aided  had  I  appended  synopses  of  the  attachment 
laws  of  the  several  States,  since  they  could  not  have  proved 
satisfactory. 

Attachment  is  treated  as  a  proceeding  personal  in  form,  but 
against  property  in  effect,  to  create  and  enforce  a  lien  to  secure 
ordinary  debt.  Exceptional  attachments,  to  enforce  pre-existing 
liens,  etc.,  have  been  distinguished  from  the  usual  proceeding. 

I  have  considered  Garnishment  in  connection  with  the  prin- 
cipal subject  so  fur  as  the  rules  are  common  to  both;  but 
separate  chapters  have  been  given  to  it  so  far  as  the  applicable 
principles  differ,  and  as  the  practice  requires.  This  arrange- 
ment facilitated  the  work,  and  I  hope  it  will  be  found  convenient 
to  the  practitioner. 

The  subject  of  Jurisdiction  has  been  extensively  discussed 
because  more  errors  have  heretofore  clustered  around  it  than 
about  any  other  connected  with  the  remedy  under  treatment. 

The  term  chose  in  action  has  been  mainly  employed  in 
a  limited  sense  as  designating  notes,  bonds,  and  other  evidences 
of  debt.  R.  W. 

Ann  Arbor,  Mich. 


CONTENTS. 


Table  of  Cases  Cited xi. 

CHAPTER    I. 

THE    REMEDY    OUTLINED. 

PAGE. 

§  1.     Definittons  and   Distinctions 1 

2.  The  Suit   Personal   in  Form 5 

3.  Tlie  Suit  Against   Property  in   Eflect 7 

4.  Ancillary   Proceeding 12 

5.  The  Suit  Limited  to  the  Debtor's  Property 14 

6.  Absence  of  Pre-existing  Lien 20 

7.  Essentials  to  Create  the  Lien 24 

CHAPTER     11. 

STATUTORY    AUTHORIZATION. 

§  1.     Generfil  Uniformity SO 

2.     Non-residents : 34 

3.-    Absentees 42 

4.  Absconding  Debtors 47 

5.  Fraudulent  Debtors  disposing  of  their  Property  to  avoid   Cred- 

itors   51 

6.  Anomalous   Grounds 60 

7.  The  Debt:   What  Debts  are  recoverable  by  Attachment 61 

8.  Exceptional   Attachments 64 

CHAPTER     III. 

THE    INSTITUTION    OP    THE    SUIT. 

§  1.    The  Petition 6S 

2.  The   Affidavit  —  Jurisdictional.. 76 

3.  The  Atlidavit  —  Matter  and   Form 79 

4.  The   Affidavit  — Indebtedness 86 

5.  The   Affidavit  —  Grounds 90 

6.  The   Affidavit  —  Amendments 101 


VI  CONTENTS. 

PAGE, 

g  7,  The   Affidavit  — As  Evidence 108 

"  8.  The  Bond  —  In  General 112 

9.  The  Bond  — Amount 11') 

10.  The  Bond  — Obligors 118 

CHAPTER     IV. 

PROCESS. 

§  1.  The  Summons 128 

2.  The  Writ—  in  General 133 

3.  The  Writ  —  as  to  Property 142 

4.  The  Writ  —  Protecting  the  Officer 144 

5.  The  Indemnifying  Bond 147 

CHAPTER    Y. 

ATTACHING. 

§  1.  What  is  Attachable 151 

2.  Property  Held  by  Third  Persons 159 

3.  Property   Consigned 101 

4.  Exemption 16 1 

5.  Choses  in  Action 167 

6.  Method  of  Seizing 171 

7.  Time  of  Seizing 182 

8.  Wrongful  Levy 184 

CHAPTER    YI. 

GARNISHING:    AND   ATTACHING   IN   THE   HANDS    OF   THIRD 

PERSONS. 

g  1.  Statute  Provisions  for  Garnishment 190 

2.  Property  in  the  Garnishee's  Hands 194 

3.  Credits 197 

4.  Assignment  with  reference  to  Garnisliment 209 

5.  Legal   Custodians 218 

6.  Non-resident  Third  Possessors 226 

CHAPTER     YII. 

CORPORATIONS    AS    GARNISHEES. 

§  1.  States 230 

2.  Counties,  &c 233 

3.  Cities 236 

4.  Private  Corporations 289 


CONTENTS.  VA 

•  CHAPTER    YIII. 

RETURN    AND    PUBLICATION. 

§  1.     Description  of  Attached  Property 2M 

2.  Requisites  of  the  Return 2.'/7 

3.  Aineadments , 2(;!) 

4.  Giunishment  Return 2(j") 

5.  Publicalioa  Notice 268 

CHAPTER     IX. 

fllE    PROPERTY    IN    COURT. 

§  1.  Custody  by  the  Sheriff 279 

2.  Keepers,  Receiptors,  &c 283 

3.  Defendant   Holding  under  the  Sheriff 2»S 

4.  The  Garnishee's  Possession 290 

5.  Sale  of  Perishable  Goods 295 

6.  Loss  of  Custody 29S 

CHAPTER    X. 

JURISDICTION. 

§  1.  Degrees  of  Authority  at  Different  Stages  of  the  Suit 300 

2.  Jurisdiction  Over  the  Debtor SU-t 

3.  Jurisdiction  Over  the  Debtor's  Property 312 

4.  Statutory  Requisites  Jurisdictional 321 

5.  The  Court's  Authority   Special 329 

6.  Territorial  Limits ,     334 

CHAPTER    XI. 

CHARGING    THE    GARNISHEE. 

§  1.  Nature  of  the  Proceeding 341 

2.  Interrogatories 348 

3.  Default 351 

4.  Exceptions  to  Interrogatories 354 

5.  The  Answer 357 

6.  Amended  Answer 3<jS 

7.  Traverse  of  the  Answer 372 

8.  Charging  Older,  Interest  and  Costs 382 

CHAPTER    XII. 

THE    DEBTOR    APPEARING    AND    BONDING. 

§  1.     Special  Appearance 383 

2.     General  Appearance 392 


Vni  CONTENTS. 

PAOE. 

§  3.  Witlidrawal  of  Attorneys  —  its  Effect  on  Previous  Appearance..  o!J4 

4.  Tlie  Forthcoming   Bond 39G 

5.  The  Bond  to  Dissolve  —  its  Eflect 403 

6.  The  Bond  to  Dissolve  —  Surety 40G 

CHAPTER     XIII. 
DISSOLUTION     OF    ATTACHMENT. 

§  1.  The  Motion  To  Qnash 412 

2.  Quashing  for  Errors  Patent 417 

3.  Quashing  on  Evidence  beyond   the   Record 425 

4.  Traverse  after  Dissolution  by  Bonding 434 

5.  Dissolution  by  Final  Judgment  for  Defendant 438 

CHAPTER    Xiy. 

DAMAGES    UPON    DISSOLUTION. 

« 

§  1.     Reconvention 440 

2.  Suit  after  Dissolution 444 

3.  The  Bond  Obligation 446 

4.  Recovery  of  Costs  and  Fees 450 

5.  Exemplary  Damages 454 

CHAPTER    Xy. 

JUDGMENT    SUSTAINING    ATTACHMENT    AND    PERFECTING 

THE    LIEN. 

g  1.     Default  after  Service 459 

2.  Decree  nisi 4G0 

3.  Default  after  Seizure  aud  Publication 4G6 

4.  Trial  upon  Issue  Joined 4G8 

5.  Intervention 470 

6.  Junior  Attachers 476 

7.  Claimants 4S0 

8.  Priority  of  Seizure 485 

9.  Priority  of  Garnishment 488 

10.  Simultaneous   Seizures 492 

11.  Competition  with  Mortgage  Liens 494 

13.     Sale  by  the  Debtor  before  Seizure 500 

13.  Assignment    502 

14.  Final  Decree,  with  Privilege 506 

15.  Final  Decree  against  the  Garnishee 513 

16.  Garnishee  Protected  by  Judgment 520 

17.  Execution 532 

18.  Garnishment  in  Execution 53G 

19.  Concursus 529 


CONTENTS.  IX 

CHAPTER    XYL 

SUITS    RESULTANT    FROM    ATTACHMENT. 

PAGE. 

§  1.    Ejectment 531 

2.  Ejectment:   Jncl.^jment-Creclitors'  Sales  as  to  Warranty 535 

3.  Ejectment:   Judgment-Owners'  Sales  as  to  Warranty;  Difference 

between  them  and  Attachment  Sales 537 

4.  Ejectment:    Attachment    Debtors'    Sales   before   Amendment   of 

Radical  Defects 544 

5.  Bond  Suits  against  Attaching  Officers 5.j0 

6.  Replevin  Suits  against  Attaching  Officers 553 

7.  Subsequent  Suits  against  Garnishees 560 

8.  Suits  between  Various   Parties 505 

CHAPTER    XVII. 

THE    REMEDY    REVIEWED. 

§  1.  Property  Liability 570 

2.  Reason  for  Attachment  Laws  Found  in  Property  Liability 573 

3.  Creation  of  the  Lien 577 

4.  The  Lien  Hypothetical 580 

5.  The  Lien  Matured  by  Judgment , 583 

6.  The  Lien  by  Garnishment 587 

7.  Differences  Reconciled 596 

Index 605 


CASES    CITED. 


[the  keferences  are  to  pages.] 


Abbott  V.  Semple,  549. 

V.  Sheppard,  305,  323. 

V.  Stinchfield,  211,  384. 

V.  Warriner,  427. 

V.  Whipple,  449. 
Abell  V.  Simon,  353. 
Abernatliy  v.  Whitehead,  484. 
Abrams  v.  Johnson,  180. 
Accessory  Co.  v.  McCurran,  22,  444. 
Achelis  «.  Kalman,  92. 
Adams  v.  Abram,  260. 

V.  Balch,  280. 

V.  Barrett,  202,  224,  237,  376. 

V.  Evans,  38. 
-      V.  Filer,  560. 

V.  .Tacoway,  123. 

«.  Kibler,  541. 

V.  Lane,  221. 

®.  Merritt,  106. 

V.  Robinson,  211. 

v.  Scott,  243. 

1!.  Sears,  473. 

V.  Tyler,  235,  238. 

V.  Willimantic  Linen  Co.,  152. 
Adams  Express  Co.  v.  Hill,  391,  394. 
Adamson  v.  Jarvis,  148. 
Adler  v.  Roth,  21,  172,  176,  280,  281, 
287,  530. 
Adour  V.  Seeligson  &  Co., 

212,  474,  483. 
Albany  City  Ins.  Co.  v.  Whitney,  402. 
Albee  v.  Ward,  330. 


Albee  v.  Webster,  188. 
Albertson  v.  Edsall,  413. 
Aldrich  v.  Arnold,  504. 

V.  Woodstock,  295,  593. 
Alexander  v.  Abbott,  276. 

V.  Denaveaux,  S3. 
V.  Haden,  93. 
V.  Harrison,  455. 
V.  Hutchinson,  450. 
V.  Jacob,  472. 
V.  Jacoby,  437,  446,  448. 
Alford?;.  Cobb,  83. 

V.  Johnson,  120. 
Allegliany  Savings  Bank  v.  Meyei, 
Allen  V.  Blunt,  828.  [37r 

V.  Brown,  106. 
V.  Clayton,  470. 
V.  Coates,  394. 
V.  Erie  Bank,  168. 
V.  Fleming,  93,  99,  419. 
V.  Gilliland,  530. 
V.  Hall,  313. 

V.  Hammond,  538,  541,  543. 
V.  Hazen,  358. 
V.  Kinyon,  98. 
V.  Lee,  549. 

V.  McCalla,  laO,  187,  499. 
V.  Megguire,  313. 
V.  Morgan,  203. 
1).  Watt,  361,  530,  560. 
V.  Wright,  47. 
Allerton  v.  Eldridge,  400. 
Allison  V.  Wilson's  Executors,  234, 
Alston  V.  Clay,  219,  333. 


(xi) 


Xll 


CASES    CITED. 


Alston  V.  Newcomer,  B9,  43. 
Am.  Ex.  Bank  v.  ^lorris  C.  &  B.  Co., 

580. 
American  Bank  v.  Rollins,  355. 
Am.  Ex.  Co.  V.  Smith  &  Crittenden, 

l(j3. 
American  Land  Co.  v.  Grady,  67. 
Amos  V.  Allnutt,  118. 
Amos  V.  The  Supervisors,  559. 
Anderson  v.  Coburn,  27,  270,  322, 

825,  333,  390,  548. 
V.  Graff,  2G2. 
t.  Jolinson,  319,  417,  4G5. 
V.  Odell,  212. 

V.  Scott,  252,  253.  258,  261, 
r.  Shaffer,  3:^8.  [265. 

V.  Sutton,  83. 
V.  Wehe,  81. 
V.  Young,  5C0. 
Andrews  r.  Glenville  Woolen  Co.,  448. 
V.  Herring,  214. 
V.  Kaufmans,  485. 
V.  Ludlow, 

1G8,  194,  201,  212. 
V.  Ohio  R.  R.  Co.,  274. 
Anet  V.  Albo,  43(i. 
Anthony  v.  Comstock,  234. 
'  •».  Wood,  503,  504. 
Archer  v.  Claflin,  94,  427. 
V.  Noble,  145,  188. 
Argyle  v.  Dwinel,  174. 
Arlege  v.  White,  218. 
Armor  v.  Cockburn,  195. 
Armstrong  v.  Blodgett,  427. 
Arnold  v.  Nye,  276,  315. 

e.  Patrick,  524. 
Arthur  v.  Hale,  526. 
Ashmun  v.  Williams,  177. 
Askew  V.  Stevenson,  423. 
Atcheson  v.  Smith,  345,  361. 
Atkins  V.  Prescott,  205,  206. 
V.  Swope,.281,  444. 
V.  Womeldorf,  1^5,  142. 
Atlantic  and  Pacific  R.  R.  Co.  v. 

Hopkins,  325,  526. 
Auerbacli  v.  Hitchcock, 

27,  54,  92,  98,  322- 
Aultman  r.  Stinan,  389. 
Austin  V.  Bodle,  338. 


Austin  V.  Bodley,  305,  323. 

V.  Grout,  63. 

V.  Latham,  83. 
Austin  &  Co.  V.  Burgett,  403. 
Avery  v.  Stephens,  21,  581. 
Averill  v.  Loucks,  524. 

V.  Tucker,  222,  230. 
Ayres  ».  Harness,  398. 

B. 

Babbitt  v.  Doe,  276,  315. 
Bachelor  v.  Bachelor,  274. 
Bacon  v.  Daniels,  284,  400. 

V.  Leonard,  172,  265. 

•».  Thompson,  495. 
Badlam  v.  Tucker,  159,  212,  281. 
Baer  v.  Otto,  110. 
Baere  v.  Armstrong,  24. 
Bagley  v.  Tate,  472,  497. 

V.  Ward,  586. 

V.  White,  288,  319. 
Bailey  v.  Adams,  ]80. 

V.  Lacey,  356,  527. 

V.  Myrick,  274. 

V.  Ross.  212. 

V.  Wright,  180. 
Bainbridge  v.  Alderson,  38,  41,  45. 
Baird  v.  Williams,  415,  477. 
Baker  v.  Fuller,  286. 

V.  Hunt,  82. 

V.  Lancashire  Ins.  Co.,  386. 

V.  McDufBe,  264. 

V.  Moody,  2:3. 

V.  Warren,  286,  288. 
Baldwin  «.  Conger,  251,  262. 
V.  Cooper,  417. 
«.  Flagg,  36,  38,  39,  159. 
-B.  J'ackson,  177,  288,  314. 
V.  Murphy,  394. 
Baldwin's  Appeal,  266. 
Ball  V.  Badger,  150,  566, 
V.  Claflin,  284,477. 
Balliuger  v.  Lautier,  45. 
Bait.  &  Ohio  R.  R.  Co.  v.  Gallahue, 
228,  340,  359,  394 
Bait.  &  Ohio  R.  R.  Co.  v.  May,  563. 
Bait.  &  Ohio  R.  R.  Co.  v.  Taylor, 

123,  517,  518 


CASES    CITED. 


XIU 


Bait.  &  O.  Ry.  Co.  v.  Wheeler,  195. 
Baliimoj-e  v.  Root,  237. 
Bait.  Bank  ■«.  Teal,  68. 
Bamberger  v.  Halberg,  480. 
Bancroft  v.  Curtis,  158. 

«.  Sinclair,  2G1. 
Bangs  V.  Beacbam,  28-4. 
Bank  v.  Carroll  ton  R.  R.  156. 
V.  Dibrell,  237. 
V.  Drury,  499. 
V.  Heath,  451,  453. 
V.  Johnson,  315. 
Bank  of  Ala.  «.  Berry,  BG,  91. 
Ala.  V.  Filzpatrick, 

118,  420,  447. 
Bank  of  Augusta  «.  Conway,  122. 

V.  Cowrey,  27,  420. 
V.  Earle,  245. 
V.  Jandon,  477. 
Bank  of  Chester  ».  Ralston,  223. 

Couimeree  v.  Rutland,  &c., 
R.  R.  Co.,  412,  427,  431. 
Fayetteville  v.  Spuriing, 

477. 
Lansinburgh,  v.  McKie,  412, 
Louisiana  v.  Stafford,  473. 
Northern  Liberties  v.  Mun- 
ford,  361. 
Northern  Liberties  B.Jones, 
li)9. 
Northwest  v.  Taylor, 

252,  2<51. 
the  State  of  Missouri  v. 

Bredow,  295. 
Tennes.see  e.  Dibrell,  230. 
the  Valley  v.  Bank  of  Berk- 
ely,  428,  430. 
Banks  v.  Lewis,  428. 

V.  Self,  133. 
Banning  o.  Sibley,  375. 
Bannister  «.  Higginson, 

361,  263,  263,  2G5. 
Banta  v.  Reynokle,  144. 

«.  Wood,  9,  10,  4G7. 
Barber  e.  Parker,  214,  387. 
V.  Robeson,  49,  156. 
V.  Smith,  107,  518,  545. 
v.  Swan,  423. 
Bardesley  v.  Hines,  77. 


Bardwell  v.  Perry,  535. 
Barker  v.  Esty,  202. 

V.  McLeod,  505. 
«.  Miller,  281,  284. 
c.  Osborne,  211,  377. 
V.  Thorn,  89. 
Barksdale  v.  Hendree,  27. 
Barlow  v.  Hall,  179. 
Barnard  v.  Graves,  196,  223: 

V.  Sebre,  99. 
Barnes  v.  The  People,  274. 

V.  Treat  et  al.,  219,  231. 
Barnet's  Case,  39,  548. 
Barnett  v.  Ring,  309.^ 
V.  Watson,  545. 
V.  Weaver,  223. 
Barney  v.  Keniston,  1G6,  1G7. 
V.  Patterson,  49 
».Weelvs,  257;  Globe  Bauk,344 
Barnum  v.  Fitzpatrick,  549. 
Barr  v.  King,  246,  248. 

■e.  Perry,  357. 
Barrett  v.  Spaids,  455. 
V.  White,  185. 
Barriers  v.  McBean,  103. 
Barrill  v.  Humphreys,  80. 
Barrow  v.  Cobleigh,  280. 

«.  West,  502. 
Barry  v.  Fisher,  205. 

V.  Foyles,  403,  43T. 
Bartell  v.  Bauman,  224. 
Bartemej'er  v.  Iowa,  5G0. 
Bartholomew  «.  Chautauqua  Co. 

Bank,  545 
©.  Warner,  536. 
Bartlett  «.  Wilbur,  198,  361,  373. 

«.  Ware,  69,  87. 
Bartle  v.  Coleman,  156. 
Barton  «.  Allbright,  503,  560,  563. 
Bassett  v.  Hughes,  109. 
Bastwiek  v.  Bass,  363,  363,  373. 
Bates  «.  Chicago,  &c.  R.  R.  Co.,  603. 
«.  Crow,  9,  10,  13,  19,  275,  312, 
V.  Days,  344.  [323,  424. 

V.  Delavan,  467. 
V.  For.^yth,  374,  375. 
V.  Jenkins^  468. 
t\  Killian.  437. 
V.  McDowell,  lie. 


XIV 


CASES    CITED. 


Bates  V.  N.  O.  etc.  R.  R.  Co.,  203,  227. 
«.  Plousky,  21,  478,  503,  581. 
V.  Ilelyea,  77. 
V.  Robinson,  83,  lOa 
V.  Tapi)an,  407. 
Battis  V.  Hamilton,  184. 
Bauer  v.  Antoine,  436,  438. 
Baiigli  v.  Kirk  Patrick,  295«. 
Bauiu  V.  Raphael,  414. 
Baiine  v.  Thomassin,  63v 
Bawden  v.  Scbatzell,  600. 
Baxley  v.  Linah,  402,  404. 
Baxter®  Curri&r,  19'7. 

V.  Mo.  etc.  R.  R.  Co.,  374. 
«.  Rice,  256,  261. 
T.  Vincent,  237,  562. 
Bayersdorfer  v.  Hart,  13. 
Beach  v.  Eotsford,  77,  79,  91i 
Beal  V.  Alexander,  403,  437. 
Bean  v.  Ayers,  28  \  286. 
-J).  Bean,  196. 

«.  Hubbard,  145, 185,  187. 
Eeardsley  v.  Mo-rgaa,  127,  421. 
Beasley  v.  Parker,  59. 
Beauregard  v.  New  Orleans,  329'. 
Becker  v.  Bailies,  27,  188,  280,  314, 

323,  566,  567. 
Becker  «.  Dunham,  117, 18&,  566,5GS-. 
Beckman  tt.  Laosing,  187. 
Beekwith  v.  Baxter,  223,  237. 

«.  Douglas,  269,  323. 
Beech  v.  Abbott,  271,  2S5,  SIQ'. 
Beechey  v.  Stji-phens,  272. 
Beer  Co.  ■».  Massachusetts,  SODi 
Beers  ■».  Place,  101,  219. 
Behyraer  v.  Cook,  166. 
BelcheT  v.  Grubb,  598. 
Belfast  Savings  Bank  v.  K.  L.  &  L. 

Co.,  69, 87. 
Belknap  v.  Gibbens,  218. 
Bell  V.  Austin,  546. 
■».  Craig,  538. 
■».  Davis,  525. 
«.  Hall,  105. 

V.  Western,  &c.  Co.,  50t>. 
B«  nder  v.  Fromberger,  542,  544. 
B<  nedict  v.  Bray,  25,  118,  127,  420, 

422,  447. 
V.  Gray,  422. 


Benedict  v.  Sterens,  601. 
Benjamin  v.  Stern,  505. 
Bennett  v.  Avant,  49,  51,  92. 
V.  BrowD,  281,  451. 
V.  Edwasrds,  86,  94,  323. 
V.  WolvertOD,  483. 
Benson  v.  Berry,  l&l,  177,  219. 
«.  Carr,  415. 
V.  Ciily,  18. 
y.  Hollaway,  36i. 
Bentley  v.  Sbriere,  223. 

«.  White,  188,  565. 
Benton  v.  Dutcher,  233. 
■B.  Roberts,  403^ 
19.  Snyder,  342. 
Bergen  Turnpike  Coi  ■».  State,  330. 
Bergh  v.  Jayne,  93. 
Bergman  «.  Sells,  488,  480,  583. 
Berry  v.  Anderson,  4C9f. 
V.  Callet,  463. 
9.  Doty,  466. 
9.  Nelson,  466. 
®.  Spear,  259. 
Berryman  v.  Stern,  21,,  404,  469. 
Bessey  v.  Yose,  259,  487. 
Betancourt  'ff.  Eberlin,  507. 
Bethun&aj.  Gibsoo,  530,  582,  597. 
Belts  -».  Gibb()ns,  148. 
Bickeystaff  d.  Patterson,  252,  253. 
Bicknell  «i.  Cleverly,  497. 

«.  Hill,  287. 
Bigelow  V.  Andress,  342,  593. 

«.  SSearn-s,  3ji0. 
Bisrgst).  Blue,  77. 
Bildersee  v.  Aden,  407,  409,  43a 
Bills  V.  Nat.  Park  Bank,  17a. 
Bing  Gee  v.  Ab  Jim,  124. 
Bingham  d.  Rwshing,  250. 
BJDDS  tj.  Williams,  416. 
Bircb  V.  Proflger,  179. 
liird  V.  Perkins,  144. 
Birdsong  v.  Birdsong,  276. 
Bishop  V.  Fennerty,  19. 

V.  Young,  198,  203,  366. 
Biss«n  «.  Briggs,  308,  322,  338. 
«.  Noooey,  486. 
11.  Strong,  197. 
Bivens  v.  Harper,  222,  236. 

v.  Matthews,  13,  20,  321. 


CP 


CASES    CITED. 


XV 


Bivens  et  al.  v.  School  Directors,  222. 
Bixby  «.  Smith,  69. 
Black  V.  Bhick,  204,  598. 
V.  Brisbin,  77. 
V.  Clendenin,  890. 
V.  Scanlan,  94. 
Blackly  v.  Matlock,  481. 
Blackwood  v.  Jones,  80,  380,  393.    " 
Blake  v.  Bernhard,  93,  94. 

V.  Hatch,  177. 
Blaine  v.  The  Charles  Carter,  324. 
Blair  v.  Cantey,  Kil,  219,  221,  5D8. 
e.  Puryear,  477. 
V.  Shew,  138,  139,  423. 
V.  Weaver,  3i)l. 
Blaisdell  v.  Ladd,  218,  842. 
Blanchard  v.  Brown,  281,  433. 

V.  Grousset,  418. 
Bland  v.  Bowie,  538. 
Bledsoe  «.  Wright,  416. 
Blevins  «.  Baker,  525. 
Bliss  V.  Heasty,  445,  406, 
«.  Smith,  204,  350. 
Blood  V.  Light,  524. 
Bloodworth  v.  Hunter,  471. 
Bloom  V.  Burdick,  276,  315,  830. 
Blossom  V.  Estes,  248,  274. 
Blum  V.  Davis,  54,  99,  100. 
Boals  ».  Shules,  390. 
Board  of  Education  v.   Scoville,  526. 
Boardman  y.  Bickford,  38,  39,  43,  51. 
V.  Glenn,  27. 
V.  Roe,  202. 
Boatwright  v.  Stewart, 

25,  124,  448,  449. 
Bobb  V.  Woodward,  275. 
Bogart  V.  Dart,  108,  157. 

v.  Swezy,  274,  322. 
Boggs  «.  Bindfckoff,  43,  50,  428,  429 
Bokeri'.  Chapline,  328. 
Bolard  v.  Mason,  391. 
Boiling  v.  Tate,  451,  453. 
Bond  V.  Fade!  ford,  284,  286. 
V.  Patterson,  96. 
v.  Ward,  148,  176,  456. 
Bonner  v.  Brown,  118,  389,  417. 
Boone  Co.  o.  Keck,  233. 
Booth  V.  Barnum,  495. 
«.  Estes,  100. 


Booth  ®.  Rees,  85,  144. 
Boothby  v.  Brown,  495. 
Borden  v.  Fitch, 

303,  312,  322,  330,  836. 
Borders  v.  Murphy,  305,  321. 
Borum  v.  Reed,  507. 
Bosbyshell  v.  Emanuel,  100. 
Boscher  v.  Roullier,  417,  427,  433. 
Best  wick  V.  Bass,  358. 

v.  Beach,  514. 
Boswell's  Lessees  v.  Otis, 

272,  315,  330,  335. 
Botsford  V.  Simmons, 

211,  212,  213,  350. 
Bottom  V.  Clarke,  27,  242. 
Bounaffon  ■».  Thompson,  518. 
Boundred  v.  Del  Hoyo,  36,  39. 
Bourne  v.  Cabot,  211. 

V.  Hocker,  117,  422,  423. 
Bowden  v.  Schatzell,  222. 
Bowen  v.  Bank  of  Medina,  416. 
V.  First  Nat.  Bank  of 

jMedina,  35. 
V.  School  District,  394. 
V.  Slocum,  78,86. 
Bower  v.  Fenn,  541. 

V.  Town,  9,  312,  321,  417,  427. 
Bowers  ■».  Beck,  58. 
■y.  Ross,  43. 
Bow^ker  v.  Hill,  168. 
Box  V.  Lawrence,  17. 
Boyce  «.  Tabb,  326. 

X).  Grundy,  541. 
Boyd  d.  Bayless,  218. 
V.  Beck,  499. 
V.  Boyd,  398,  420. 
v.  Brisban,  451,  453. 
V.  Buckingham,  8'J,  91,  397. 
«.  Chesapeake  &  Ohio  Canal 

Co.,  210. 
«.  Cobbs,  484. 
V.  Marlin,  445. 
-B.  Urguliart,  335. 
Boyer  v.  Clark,  22,  441. 
Boyes  v.  Coppinger,  427,  431. 
Boyland  v.  Boyland,  270. 
Boyle   V.   Franklin   Fire   Ins.    Co., 

202. 
Boylen  v.  Young,  482. 


XVI 


CASES    CITED. 


Boynton  r.  Wiirren,  154,  314,  322,  558. 
Brack  v.  IVIcMalian,  75. 
Bozeman  ■».  Shaw,  185. 
Brace  v.  Benson,  545. 
Bradbury  v.  Van  Nostrand,  131. 
Bradford  v.  Coit,  394. 

V.  Gillispie,  171. 
Bradley  v.  Arnold,  187. 
V.  Cooper,  G3. 
V.  Hunt,  169. 
V.  Town  of  Richmond, 

235,  237,  239. 
Bradley's  Appeal,  139. 
Bradstreet  v.  The  Neptune  Ins.  Co., 
272,  315. 
Brady  v.  Tabor,  214,  387. 
Brainard  v.  Bushnell,  258,  486. 

D.  Shannon,  3G4. 
Braley  v.  Boomer,  407. 
Bramlield  v.  Dyer,  548. 
Bramhall  v.  Flood,  495. 
Branahl  v.  Watson,  522. 
Bi-anch  v.  Frank,  80,  425. 
Branch  Bunk  v.  Foe,  203,  239,  394. 

V.  McDonald,  40. 
Brand  v.  United  States,  539. 
Brandon  Iron  Co.  v.  Gleason, 

489,  491. 
Branner  v.  Chapman,  393. 
Brash  v.  Wielarsky,  420. 
Brashear  v.  West,  59,  293,  597. 
Brauser  v.  New  Eng.  Ins.  Co.  247. 
Branson  v.  Shinn, 

49,  427,  431,  432,  433. 
Bray  v.  Marshall,  2G8. 
V.  Saanian,  484,  508. 
V.  Wallingford,  233,  238. 
Brayton  v.  Freeze,  107,  394. 
Breading  v.  Seigworth,  504. 
Breck  v.  Blair,  400. 
Breed  v.  Mitchell,  41. 
Breedville  v.  Nicolet,  602. 
Brenner,  Trucks  &  Co.  v.  Moyer, 

20,  402,  403. 
Brewer  v.  Springfield,  272. 

V.  Tucker,  94,  417,  431. 
Bridge  v.  Wyman  et  al.,  287,  288,448. 
Bridge  Proprietors  v.  lloboken 

Com.,  326. 


Bridges  v.  North,  203. 
V.  Perry,  280. 
Brien  v.  Pitman,  4G4. 
Brigden  v.  Gill,  19G,  202. 
Briggs  V.  Block,  190,  213,  223. 

V.  Gleason,  285. 

V.  Kouns,  293,  595. 

V.  Mason,  286. 

V.  Smith,  25,  118,  422,  447. 

V.  Taylor,  280. 
Brinegar  v.  Griflfln,  416,  436. 
Brinsfield  v.  Austin,  275. 
Biode  V.  Firemen's  Ins.  Co.,  361. 
Brolaskey  v.  Landers,  47. 
Bromtield  v.  Dyer,  536. 
Bromley  v.  Smith,  329. 
Bronson  v.  Shinn,  36. 
Brooks  V.  Chatham,  167. 

v.  Cook,  219,  221,  223. 

T.  Poirier,  120., 

V.  State,  177. 
Brower  v.  Smith,  171. 
Brown  v.  Ashbough,  38. 

V.  Balde,  393. 

V.  Cook,  284, 

V.  Cooper,  289. 

V.  Crenshaw,  94. 

V.  Davis,  264. 

V.  Dudley,  560;  Dist.  Col.  230. 

«.  Finley,  230. 

r.  Foster,  213.    .  ' 

V.  Frost,  543. 

1).  Hawkins,  100,  107. 

v.  Jones,  451,  453. 

V.  McCluskey,  93. 

V.  McGehee,  479. 

V.  Mosely,  553. 

V.  Neale,  140. 

1).  Rice's  Admr.,  541. 

«.  Richmond,  280. 

V.  Saratoga  R.  R.  Co.,  390. 

V.  Seymour,  386. 

T.  Silsby,  216. 

«.  Somerville,  563. 

D.  United  States,  543. 

«.  VauBroom,  326. 

X.  Warren,  3G7. 

^.  Whiteford,  116,  117,421. 

V.  Williams,  586. 


CASES    CITED. 


XVJV 


Brownell  c.  Manchester,  281,  284. 
Browufield  v.  Dyer,  270. 
Browiiwell  V.  Carnley,  159. 
Bruce  v.  Cloutman,  30Jj,  323. 
©.  Coleman,  113,  446. 
«.  Conyers,  89. 
V.  Cook,  77,  357. 
«.  Holden,  177. 
V.  Petlengill,  256,  280. 
e.  Stewart,  311. 
Brugman  v.  McGuire,  23,  67. 
Brulin  V.  Jelierson  Bank,  321,  333. 
Bruley  v.  Seaman,  78. 
Brumby  v.  Bernard,  400,  401. 
Brumgard  v.  Anderson,  432. 
Brummell  v.  Hurt,  5o6. 
Brunott  v.  McKee,  552. 
Brush  V.  Scribner,  169. 
Bryan  e.  Deaa,  519. 

V.  Duuseth,  36. 
V.  Front,  258. 
V.  Lashley,  27,  343,  595. 
«.  Smith,  331. 
Bryant  v.  Allen,  16. 

B.  Hendee,  123,  394. 
V.  Osgood,  176,  255,  256. 
«.  Simoneau,  58. 
Buckingham  v.  Osborne,  132,  264. 
Buckingham  c.  Swezy, 

20,  157,  403,  404,  469. 
Buchanan  v.  Alexander,  222,  230. 

V.  Sterling,  102,  323. 
Buck  c.  Colbath,  553,  554. 
Buckhardt  v.  McClellan, 

173,   256,  492. 
Buckhurst  v.  Clinkhard,  535. 
Buckley  v.  Lowry,  9,  27,  77,  321,  331. 
Bucklin  v.  Crampton,  177,  251. 
Buckmaster  v.  Smith,  160. 
Buddig  V.  Simpson,  194. 
Buddington  v.  Stewart,  157. 
Budsong  V.  Sledge,  421. 
Buflham  v.  Racine,  234,  237. 
Buice  V.  Lowman,  394. 
Bulfinch  V.  Winchenbach,  206,  491. 
Bulkley  v.  Eckert,  222,  233,  236. 
Bullard  v.  Wait,  163. 
Bullene  v.  Smith,  57. 
Bullock  V.  Ferguson,  453. 


Bump  V.  Betts,  456. 
Bunce  v.  Beed,  274. 
Bundrem  v.  Denn,  13,  30,  27,  323, 

41S,  4LX 
Bunker  v.  Gil  more,  367. 
Bunn  V.  Pritchard,  105. 

V.  Thompson,  546.       ^ 
Bunt  V.  Rheum,  22,  443. 
Burcalow  v.  Trump,  36,  4L 
Burch  V.  Watts,  414. 
Burgen  v.  Shaver,  448. 
Burgess  V.  Atkins,  525. 

V.  Clark,  4o,  51;  Seligman, 
Bnrk  v.  Barnard,  543.  l.::»25. 

Burkhardt  v.  McClellan,  595. 
Burkhart  v.  Jennings,  450. 
Burnam  v.  Romans,  77. 
Burue  v.  Gardner,  113. 
Burleson  v.  Milan,  231,  224,  236. 
Burlingame  ».  Bell, 

161,  219,  292,  295,  595. 
Burnell  v.  Hunt,  156. 

V.  Robinson,  27. 
Burnham  v.  Beal,  196. 

e.  Fond  du  Lac, 

222,  234,  237 
Burnside  v.  McKinley,  1!j5. 
Burrell  v.  Letson,  161,  194,  231. 
Burroughs  v.  Wright,  161,  219. 
Burrows  «.  Miller,  38. 
Burrus  v.  Moore,  373. 
Burton  v.  District  Township,  316. 
V.  Knapp,  450. 
«.  Smith,  451. 
©.  Watson's  Case,  505. 
V.  Wilkinson,  178,  179. 
V.  Winne,  83,  193,  208. 
Bury  V.  Conklin,  394. 
Bush  V.  Bush,  394. 
Bushey  v.  Raths,  389. 
Bushnell  v.  Allen,  353,  354,  360. 

V.  Com.  Ins.  Co.,  35,  239. 
Bussey  v.  Leavitt,  275. 

V.  Rothschilds,  85,  91. 
Butler  V.  Kelsey,  139.  « 

V.  Mullen,  367. 
V.  White,  314,  322,  52S. 
Butt  V.  Green,  525. 
Butterfleld  v.  Clemence,  281. 


XVlll 


CASES    CITED. 


Biizzell  V.  Hardy,  107,105. 
Byers  v.  McCliinahan,  (308. 
Byrd  v.  Hoi)kins,  251,  423. 
Byrne  v.  Roberts,  69. 

C. 

Cabeen  v.  Douglass,  258. 

Cad  well  v.  Colgate,  77. 

Cady  V.  Comly,  224. 

Cain  V.  Simpson,  309. 

Cairo,  &c.  R.  R.  Co.  v.  Killenherg, 

195,  366,  3G7,  372,  375,  376. 
Caldwell  v.  Arnold,  145,  185. 
V.  Barclay,  47. 
«.  Coates,  202,  375,  376. 
V.  Colgate,  40J,  436. 
v.  Haley,  27. 
■».  Stewart,  344. 
Calhoun  v.  Ware,  315,  320,  323. 
Calk  V.  Chiles,  77. 

Callaghan  ».  Pocasset  Manf.  Co.,  237. 
Callahan  v.  Hallowell,  239,  394. 
Callen  v.  Ellison,  329. 
Callender  v.  Duncan,  117,  416. 

®.  Furbish,  212. 
Calsou  V.  Wilson,  166. 
Camberford  v.  Hall,  478. 
Cambridge  v.  Charlestovvn,  39. 
Cammon  v.  Tompkins,  430. 
Camp  V.  Cahn,  89. 

V.  Chamberlain,  187. 
V.  Tibbets,  94. 
Campau  v.  Traub,  358. 
Campbell  v.  Chamberlain, 

22,  442,  449,  450,  451. 
®.  Hall,  85,  91,  92. 
V.  McCahan,  330,  338. 
V.  Moore,  549. 
V.  Nesbitt,  361,  521. 
V.  Robert  Morris, 

252,  319,  431. 
V.  Ruger,  493. 
v.  Warner,  57,  58. 
V.  Whetstone,  425. 
Canaday  v.  Detrick, 

361,  503,  520,  565. 
Canfield  v.  Hard,  469. 
Cannon  v.  Dunlap,  506. 


Cannon  v.  Logan,  100. 

V.  McManus,  427,  430. 
V.  Wood,  331. 
CanOYer  v.  Ruckman,  598. 
Capehart  v.  Dowery,  414. 
Carey  v.  Gregg,  21. 

V.  Gunnison,  22,  443,  456. 
V.  State,  552. 
Cariker  v.  Anderson,  321,  331. 
Carkin  v.  Babbitt,  165. 
Carleton  v.  Ryerson,  172,  256. 

V.  Washington  Ins.  Co., 
275,  305,  309,  310,  322,  338. 
Carlton  v.  Davis,  185. 
Carmack  v.  Commonwealth,  552. 
Carney  v.  Emmons,  549. 
Carpenter  v.  Central  Park,  &c.  R.  R. 
Co.,  393. 
T.  Dresser,  159,  188,  566. 
«.  Gay,  362. 
V.  Pridgen,  99. 
V.  Stevenson,  449. 
V.  Turrell,  407. 
Carr  v.  Farley,  282,  289. 

V.  Van  Holson,  322,  503. 
Carrington  v.  Smith,  314. 
Carroll  ■y.  Purkes,  520,  Smith,  325. 

V.  GarroU's  Lessee,  o2c. 
Carter  v.  Champion,  21,  172,  495.      • 
V.  Gregory,  477. 
V.  Jarvis,  157. 
V.  AVillard,  163. 
Cartwright  v.  Chabert,  142. 
Carver  v.  Shelley,  22,  444. 
Case  V.  Beauregard,  60. 

V.  Moore,  514. 
Casey  v.  Adams,  312. 

v.  Davis,  196,  222,  564. 
Cashing  v.  Laird,  377. 
Casson  v.  Louis  St.  Bank,  471. 
Catlin  V.  Rickelts,  393. 
Cato  V.  Thompson,  541. 
Cattle  V.  Am.  Screw  Co.,  522. 
Cawthorn  v.  McGraw,  180. 
Cedar  Hill,  &c.  Mining  Co.  v.  Jacob 
Little,  &c.  Mining  Co.,  389. 
Center  v.  McQuestion,  196,  204,  213. 
Central  Bank  v.  Prentice,  212. 
Central  Plank  Road  v.  Sammons,  244, 


OASES   CITED. 


XIX 


Chadbourne  v.  Summer, 

177,  2G4,  314,  322. 
Cliatee  v.  Fourth  Nat.  liauk,  155. 
Chaiue  v.  Wilson,  30. 
Cliamberford  v.  Hall,  361. 
Chamberlatu  v.  Seller,  148. 

V.  Deinpsey,  274. 
V.  Faris,  9,  312,  323.     ' 
Chambers  v.  McKee,  361. 

■V.  Sloan,  91. 
Chandler  v.  Dyer,  21, 172. 
V.  Nash,  331,  413. 
V.  Thurston,  160. 
Chapin  v  Ct.  R.  R.  Co.,  196. 
Chapman  v.  Briggs,  158. 

V.  City  of  Brooklyn,  543. 
®.  Foster,  158. 
V.  Searle,  163. 
v.  Williams,  197. 
Chappel  V.  Chappel,  548. 
Charles  v.  Haskins,  551. 
Charnock  v.  Colfa.\-,  288,  314,  323. 
Chase  v.  Foster.  415. 
V.  Hill,  259. 

V.  Ninth,  &c.  Bank,  37,  39. 
V.  North,  375. 
Chealy  v.  Brewer,  221,  233,  235. 
Cheatham  v.  Trotter,  9. 
Chenault  v.  Chapron,  427,  430,  450. 
Cheuy  v.  Nelson,  418. 
Cheougwo  V.  Jones,  563. 
Chesapeake  R.  R.  Co.  v.  Paine,  245. 
Chesley  v.  Coombs,  367. 
Chesney  v.  Francisco,  38. 
Chicago  V.  Robbins,  326. 
Chicago,  &c.  R.  R.  Co.  v.  Raglaud, 

204,  240,  519. 
Childress  v.  Dickens,  203. 

V.  Fowler,  403,  436. 
Childs  V.  Digby,  201,  248. 

V.  Ham,  257,  262,  281. 
Chipella  v.  Launsse,  472. 
Chipman's   Case,    1-56;    Chittenden's 
Chittenden  v.  Hobbs,  4-^0.     [Case,  328. 
Choppin  V.  Wiliron,  525. 
ChristaU.  Kelly,  393,  410. 
Christmas  v.  Biddle,  212,  248. 

V.  Russell,  336. 
Christy  v.  Pridgeon,  326. 


Church  V.  Crossman,  389. 
V.  Knox,  205. 
V.  Simpson,  375. 
Churchell  v.  Fulliara,  119,  123. 
Churchill  v.  Abraham, 

113,  446,  449,  450. 
Churchill  v.  Palmer,  543. 
Cincinnati  v.  Bickett,  272. 
City  Bank  v.  Merritt,  36,  49,  431,  433. 
City  Bank  of  New  Orleans  v.  Mcln- 
tyre,  471. 
City  of  Alton  v.  Kirsch,  391. 
City  of  Charleston  v.  Blohme,  541. 
City  of  Chicago  v.  Halsey,  237. 
City  of  Chicago  v.  Rock  Island  R.  R. 
Co.,  330. 
City  of  Erie  v.  Knapp,  237. 
City  of  Lowell  v.  Parker,  551. 
City  of  Newark  v.  Funk,  239. 
Claflin  V.  Baere,  94,  436. 

V.  Iowa  City,  240,  250. 
V.  Lisso,  417. 
Clanahan  v.  Brack,  88,  103. 
Clanton  v.  Laird,  137,  263. 
Clapp  V.  Beardsley,  330. 

V.  Bell,  581. 

V.  Graves,  131. 

®.  Hancock  Bank,  217. 

V.  Thomas,  166. 

«.  Walker  &  Davis,  235. 
Clark  V.  Arnold,  41,  45. 

«.  Blackwell,  549. 

V.  Boggs,  222. 

V.  Bratt,  275. 

V.  Brewer,  243. 

V.  Brott,  32,  25,  27,  323,  449, 

453,  483. 

V.  Bryan,  315,  321,  333. 

t>.  Callaghan,  16. 

V.  Chapman,  240,  250. 

«.  Cilley,  213. 

V.  Fox  worthy,  526. 

V.  Gamwell,  289. 

V.  Gardner  et  al.  &  Trustee, 

483. 

V.  Garther,  77. 

D.  Gary,  264. 

«.  Holmes,  276,  315. 

«.  Lassen  Co.  Court,  331. 


XX 


CASES    CITICD. 


Chirk  V.  Likens,  3G,  39. 

V.  Meixsell,  :  57,  427. 

V.  Mobile  School  Commr's,  236. 

t;.  N.  J.  Steam  Nav.  Co.,  328. 

V.  Morse,  88. 

V.  Pratt,  4(5,  58. 

T.  Roberts,  77,  419. 

V.  Seaton,  56. 

T.  Smith,  57. 

v.  Thompsnn, 

331,  330,  331,  333. 

V.  Viles,  U)8. 

V.  Ward,  45. 

■V.  Wilson,  420. 
Clary  v.  Haines,  401,  403. 
Claussen  v.  Fiiltz,  27,  92,  323. 
Clay  V.  Neilson,  252,  253,  265,  428. 

V.  Scott,  493. 
Clayburg  v.  Ford,  107. 
Claypole  v.  Houston,  77. 
Clement «.  Clement,  203. 
Cleneay  v.  The  Junction  R.  R.  Co., 

267. 
Clerk  V.  Withers,  280. 
Cleveland  v.  Clap,  591. 
Climer  v.  Russell,  557. 
Clinton  National  Bank  v.  Bright, 

362,  367,  373. 
Close  V.  St.  Clair,  167,  525. 
Clough  V.  Buck,  208,  517. 
Clymer  v.  Willis,  161,  219,  220. 
Clymore  v.  Williams, 

9,  10,  280,  305,  312,  321,  335. 
Cobb  V.  Bishop,  202. 

v.  Force,  92. 

v.  Gage,  180. 
Coble  V.  Noncmaker,  217,  218. 
Coburn  v.  Ausart,  223. 

V.  Hartford,  203. 
Cochrane  v.  Quackenbush, 

22,  r.3,  445. 
Cockey  v.  Leister,  222. 

v.  Milne,  .549,  586. 
Cockfield  v.  Tourres,  364. 
Cotkrell  v.  McGraw,  413,  415. 
Cod  ington  v.  Gilbert,  171. 
Coc  man  v.  Freeman,  497. 
Coe  V.  Wilson,  160. 
Coftein  v.  Smith,  487. 


Coffin  7).  Ray,  167,  495,  502,  509,  524 
Cohen  v.  Burr,  109, 

«.  Trowbridge,  393. 
V.  Wauco,  82,  84. 
Cohens  v.  Virginia,  326. 
Cohn  V.  Justice,  412. 
Colby  v.  Coates,  222,  236. 
V.  Gould,  4:9,  468. 
Cole  V.  Wooster,  222,  489,  491. 
Coleman  ®.  Waters,  507. 
Coleman's  Appeal,  8,  308,  312,  322. 
Collier  v.  Falk,  393. 
Collins  V.  Chase,  155. 

Granite  Co.  v.  Devereux,  66. 
V.  Jennings,  520. 
V.  Perkins,  285. 
Colman  v.  Anderson,  275. 

X.  Bean,  4u7,  409,  438. 
Colston  V.  Berends,  274. 
Colt  V.  Ives,  27,  211. 
Colwell  V.  Bank  of  Steubenville,  274. 
Commerce  Bank  v.  Huntington,  228. 
Commercial  Bank  v.  Chicago,  M.  & 
St.  P.  R.  R.  Co.,  204,  241. 
Commercial  Bank  v.  Ullman, 

86,  91,  100,  102. 
Commercial  Bank  v.  Neally,  223. 
Commissioners  v.  Watts,  543. 
Commonwealth  ».  Greene,  338. 

«.  Intoxicating   Liq- 
uors, 560. 
v.  Matthews,  560. 
V.  Morse,  284. 
V.  Stockton,  145,  188. 
Comstock  V.  Crawford,  329. 
V.  Faruham,  565. 
Conant  v.  Bickuell,  161,  219,  221. 
Cougar  V.  Galina,  --130. 
Congdon  v.  Cooper,  280,  289. 
Conklini;.  Dutcher,  412. 

V.  Goldsmith,  119. 
«.  Harris,  127,  156,  421. 
Conley  v.  Chilcote,  191. 
Connell  v.  Scott,  177. 
Connelly  v.  Harrison,  213. 
Conner  v.  Commissioners  of  Rice 

Co.,  433. 
Conner  v.  Long,  184,  568. 
Conrad  v.  McGee,  77,  100. 


CASES    CITED. 


XXI 


Conrad  v.  Pileur,  471. 
Conturie  v.  Ilastie,  538. 
Conway  0.  Arinin^toa,  253,  225. 

V.  Ionia  Circuit  Judge,  198. 
Conwell  V.  Thompson,  470. 
Cook  V.  Dillon,  VJd. 
V.  Fallen,  275. 
V.  Hopper,  145. 
V.  Jenkins,  84. 
V.  AValthall,  202,  239. 
V.  Whitney,  344. 
Cooke  V.  Cooke,  580. 

V.  Hallett,  197. 

«.  State  National  Bank,  35. 
Coone  V.  Braun,  212. 
Cooney  v.  Moroney,  290. 

1).  Whitfield,  95. 
Cooper  V.  Cooper,  537,  541. 

V.  Frederick,  77. 

V.  Hill,  44). 

V.  ]\[cClun,  563. 

V.  INIetzger,  477,  496. 

«.  Mowry,  280,  289. 

V.  Newman,  145,  185,  187. 

V.  Reeves,  417. 

V.  Reynolds, 

8,  13,  317,  820,  325,  32G. 

■e.  Smith,  109,  305,  322. 

«.  Sunderland,  276. 
Coosa  River  St.  Bt.  Co.  v.  Barclay, 

46. 
Copeland  v.  Ins.'  Co.,  477. 

«.  Weld,  168. 
Coppel  V.  Smith,  597. 
Corhyn  v.  Bollman,  222. 
Corcoran  v.  Judson,  451,  453. 
Cordaman  v.  Malone,  399,  567. 
Corey  v.  Powers,  218. 
Cornelius  v.  Davis,  276,  332. 
Cornell  v.  Dakin,  407. 
Cornman's  Appeal,  128. 
Cornwell  v.  Huugate,  361,  565. 
Corwin  v.  Merritt,  276,  315. 
Coston  V.  Paige,  432. 
Cota  V.  Ross,  527. 
Cottle  D.  Am.  Screw  Co.,  522,  565. 
Cotton  V.  Gladding,  40. 

V.  Huey,  139. 
Cottrell  V.  Varunon,  203. 
County  ut  Cuss  v.  Jolmston,  325. 


Countess  of  Rutland's  Case,  4. 
Courrier  v.  Cleghorn,  77. 
Cousins  V.  Brashier,  25,  118,  447. 
Covell  V.  Heyman,  554. 
Covert  «.  Clark,  389,  390,  392. 
Covington  v.  Cothran,  261. 
Coward  v.  Dillinger, 

78,  417,  419,  423,  428. 
Cowardine  v.  Universal  Life  Ins. 

Co.,  242. 
Cowdry  v.  Walker,  3-50. 
Cowlon  V.  De  Lisle,  431. 
Cox  V.  Millner,  165. 

«.  Robinson,  445,  449. 
V.  Waters,  87,  89. 
Crabb  v.  Atwood,  275. 
Craddock  v.  Goodwin,  449. 
Crafts  V.  Sykes,  545. 
Craigmiles  v.  Hayes,  54,  98. 
Cramer  v.  White,  468. 
Crandall  v.  McKaye,  85. 
Crane  v.  Freese,  219,  221,  161,  598. 
Crane  v.  Kimmer,  331. 
Crary  «.  Barber,  389. 
Crawford  v.  Benton,  495. 

V.  Roberts,  87,  89     - 
Crayne  v.  Wells,  92. 
Creagh  v.  Delane,  110. 
Creasser  v.  Young,  86,  101. 
Creighton  v.  Kerr,  27,  304,  322, 

393,  394,  396. 
Crisman  v.  Swisher,  262. 
Crocker  v.  Clements,  159. 
V.  Pierce,  165. 
V.  Radcliffe,  582,  595. 
Crone  v.  Braun,  474,  484. 
Cronin  v.  Foster,  227. 
Cropper  v.  Coburn,  156. 
Crosby  v.  Allyn,  172,  174,  255,  256. 
Crosby  v.  Hetherington, 

133,  172,  174,  255,  256. 
Cross  V.  Brown,  280. 

V.  Elliott,  318. 

V.  McMaken,  79,  86,  88,  91. 

^j.  U.  S.,  272,  315. 
Grossman  i\  Grossman,  358,  373. 
Grouch  V.  Grouch,  105. 
Growell  v.  Galloway,  390,  398. 
Crowley  v.  Wallace,  828. 


XXll 


CASES    CITED. 


Crowninshield  v.  Slrobel, 

145,  530,  582,  595. 
Croxall  V.  Hutchings,  92. 
Cruett  '0.  Jenkins,  198,  208. 
Crum  V.  Luidlaw,  472. 
Criiyt  V.  Phillips,  409. 
Ciilbertson  v.  Cabeen,  98,  99. 
Culver  V.  Runisey,  177. 
Cumraens  v.  Tovey,  495. 
Gumming  v.  Brown,  552. 
Cummiogs  v.  Denny,  127,  421. 
V.  Fearey,  216. 
V.  Garvin,  224. 
Cuney  v.  Nat.  Bank  of  Augusta, 

352,  3G7,  37G,  380. 
Cunnu:ghara  v.  Gushee,  487;  Goelet, 
V.  Lamar,  119.        [396. 
V.  Pac.  R.  R.  Co.,  829. 
Cureton  v.  Dargan,  259,  412. 
Curiae  v.  Packard,  398. 
Curlings.  Hyde,  219,  224. 
Curreus  v.  Ratclitle,  260,  434, 
Curry  v.  Woodward,  356,  423. 
Curtis  V.  Alvord,  201. 

V.  Hoadley,  57. 

V.  Jackson,  390. 

V.  Moore,  102. 

«.  Munday,  495. 

V.  Norris,  212. 

V.  Settle,  91. 

V.  Smith,  229. 
Gushing  v.  Hurd,  496,  509,  524. 
Cushman  v.  Haynes,  213. 
Cutler  V.  Evans,  407. 
Cutter  v.  Howe,  28;),  314,  322. 
Cutter  V.  Richardson,  106,  410,  425. 
Cutts  ■».  Perkins,  211. 
(Jushmg  V.  Lau-d,  439. 

D. 

Daggett  V.  Robins,  557. 
Daivin  v.  Anderson  276,  315,  330. 
Daley  v.  Cunningham,  222. 
Dall  V.  Cooper,  113,  450. 
Dalton  V.  Bowker,  453. 
Dame  v.  Fales,  183. 
Damon  v.  Bryant,  145. 
Dana  v.  Adams,  396. 
Dandridge  v.  Stevens,  86. 


Dan  forth  v.  Carter,  123. 
Danfoilh  v.  Rupert,  434. 
Daniel  v.  Mitchell,  538,  541. 
Daniels  v.  Eldridge,  199. 

V.  Mienhard,  242,  350,  351. 
V.  Sorrells,  495. 
Danielson  v.  Andrews,  140. 
D'Arcy  v.  Kitchum,  336,  337, 838,  339. 
Darlington  ».  Rogers,  246. 
Darrance  v.  Preston,  322,  335,  338. 
Darwin  v.  Hatfield,  543. 
Davenport  v.  Lacon,  21. 
Davenport  v.  Swan,  212. 
Daves  ?j.  Rodier,  158. 
Davidson  v.  Chatham  Nat.  Bank,  567. 
V.  Donovan,  240. 
•».  Hackett,  109. 
Davis  V.  Blunt,  500. 

V.  Davis,  223,  493. 

v.  Drew,  223. 

v.  Edwards,  92,  99. 

1).  Eppihger,  480. 

V.  Fogg,  4S3;  Friedlander,  o29. 

v.  Garrett,  165. 

1).  Ham,  203, 

1).  Jones,  276. 

V.  Mahaney,  598. 

V.  Marshall,  118,  420,  421. 

v.  Marston,  199. 

V.  Miller,  286. 

«.  Morris,  548. 

V.  Pawlette,  203. 

V.  Railroad,  538. 

V.  Stone,  188,  280,  314,  322. 
Dawson  v.  Contee,  464. 

V.  Holcomb,  161, 218, 220, 59a 
V.  Jones,  564. 
V.  Miller,  434. 
Day  r.  Bach,  144. 

V.  Bennett,  103,  430,  433. 
V.  Kcnilall,   498;  Newark  I.  R. 
Deacon  v.  Oliver,  168.  [Co.,  328. 

Deal  V.  Bogue,  535. 
Dean  v.  Bailey,  285. 

V.  Garnet,  423. 

V.  McGavock,  218. 

V.  Oi)penheimer,  96, 100,  423. 
Dearing  v.  Watkins,  49.9. 
Deblieux  v.  Dotard,  223,  226. 


CASES    CITED. 


XX]  Jl 


De  Caiissey  v.  Baily,  GS. 

De  Celis  v.  Porter,  524. 

Decoster  v.  Livermore,  223. 

Degnau  v.  Wheeler,  432. 

De  Graff  v.  Thompson,  241. 

Doliuer  v.  Helinbaclier  Forge,  etc., 

n^er  V.  Lnby.  230.  [213. 

I><'l;inot'.  Kpiinedy,  436. 

Del  by  v.  Tingley,  361,  521. 

D  'leniater  v.  Miller,  139. 

Dohnas  y.  Ins.  Co.,  326. 

Deraeritt  v.  Estes,  387. 

Dempsey  v.  Gardner,  163. 

Deuuy  v.  Ward,  548. 

1-.  Warren,  238. 

V.  Willard,  264,  286. 
Denning  v.  Corwin,  330. 
Densmore  v.  Matthews,  552. 
Dent  V.  Smith,  22,  25,  442,  449,  450, 

455,  456. 
Denton  ■».  Livingston,  168,  264. 
Deories  v.  Summit,  105. 
Dequiudre  v.  Williams,  329. 
Derby  v.  Shannon,  478. 
Derr  v.  Lubey,  230. 
Desha  v.  Baker,  21,  251,  345. 
Des  Moines  and  Minn.   R.  R.  Co.  v. 
Alley,  312,  392. 
Despatch  Line  v.  Bellamy  Manf.  Co. 
202,  295. 
Detroit  Post  &  Tribune  Co.  v.  Reilly, 

198. 
Deupree  v.  Eisenach,  419. 
Devall  V.  Taylor,  99. 
De  Verdal  v.  Malooue,  499. 
Devoe  v.  Brandt,  163. 
Devries  «.  Summit,  27,  77,  92,  323. 
Dew  V.  Bank  of  Ala.,  354. 
Dewey  v.  Garvey,  230. 
Dewey  v.  Green,  94. 
Dewing  v.  Wentworth,  222. 
Dewitt  ».  Oppenlieimer,  178. 
Dey  V.  Dunham,  500. 
Deyo  V.  Jennison,  181. 
Dick  V.  Bailey,  281. 
Dickey  v.  Fox,  214. 
Dickinson  v.  Barnes,  431. 

t).  Beuham,  57,  417,  431, 
432. 


Dickinson  v.  Hayes,  17. 

V.  Maynard,  23,  444,  445 

V.  McGraw,  446. 

V.  Strong,  168,197 
Dider  v.  Courtney,  430,  450. 
Didier  v.  Gallowa}^  421. 
Dierolf  v.  Winterfield,  20,  402,  437. 
Dieter  v.  Smith,  204. 
Dietrich  v.  Lang,  6i). 
Dillenback  v.  Jerome,  284 
Dillon  V.  Watkins,  119. 
Divine  v.  Harvie,  230,  237. 
Dobbins  v.  Hyde,  211,  214,  563. 
Dobbs  V.  The  Justices,  156. 
Dodge  V.  Walley,  521. 
Doe  V.  Anderson,  27G,  315. 
Doe  V.  Routlege,  501. 
Dolson  V.  Brown,  213. 
Donhara  v.  W^ild,  280. 
Donnell  v.  Jones,  113,  450,  456. 
Doulittle  V.  Shelton,  9,  467,  513. 
Dorham  v.  Kane,  280. 
Dormitzer  «.  111.  &  St.  Louis  Bridge 
Co.,  312. 
Dorr».  Clark,  79,  84,  110. 
V.  Gibboney,  390. 
V.  Kershaw,  403,  405. 
Dorsey  v.  Kyle,  39. 
Douglas  V.  Simpson  &  Trustee,  215. 
Douglass  0.  Habestro,  394. 
v.  Neil,  361. 
V.  Winslow,  525. 
Dove  V.  Martin,  123. 
Dow  V.  Cheney,  525. 
Dow  V.  Whitman,  274,  275,  276,  323. 
Downer  i\  Shaw,  8,  312,  322. 
Downing  v.  Phillips,  426. 
Downman  v.  Chinn,  399. 
Downs  v.  Fuller,  309,  323. 
Doyle  V.  Gray,  363. 
Drake  v.  Hager,  101. 
Drake  v.  Mooney,  2o3,  263. 
Drane  v.  McGavock,  221. 
Drevv  v.  Alfred  Bank,  140. 
Drew  «.  Dequindre,  92,  110,  274,  425. 
Dressor  v.  McCord,  197. 
Driscoll  V.  Hoyt,  367. 
Dronillard  v.  Whistler,  69. 
Drummond  v.  Stuart,  450. 


XXIV 


CASES    CITED. 


Dubbs  V.  Ilemken,  274. 

Dublin  V.  Cliiidburn,  17. 

Dubois  V.  Dubois,  lUl,  219^221. 

Duciiaud  V.  Rousseau,  174. 

Dudley  v..  Goodrich,  4(i8. 

Dudley  v.  Lamoille  County  Bank,  284. 

Dubois  V.  Glaub,  395. 

Duepree  v.  Eisenach,  78. 

Duffee  V.  Call,  o86. 

Dully  &  Mehally  v.  Lylle,  402,  404. 

Duke  V.  R.  I.  Locomotive  AVorks, 

250,  359. 
Dukierris  ®.  Hallisay,  359. 
Dunham  v.  Waterman,  59. 
Duncan  v.  lieadley,  49,  156. 
Duncan  v.  WicklifFe,  71. 
Dundee  v.  Fales,  177,  314,  322. 
Dunlap».  Hooper,  204. 
Dunlevy  v.  Schwartz,  81,  93. 
Duulop  V.  Patterson  Fire  Ins.  Co., 

154,  200,  222,  248. 
Dunn  V.  Crocker,  84,  409,  416,  509. 

V.  Myers,  58,  427. 

V.  Salter,  50. 
Dunnegan  v.  Byers,  203. 
Dunning  «.  Humphreys,  448,  449, 450. 
Du  Puy  V.  Strong,  390. 
Durant  v.  Johnson,  494. 
Durborrow's  Appeal,  156. 
Durham  v.  Lisso,  12G. 
Duringer  v.  Monchino,  530. 
Durr  V.  Jackson,  52. 
Durrossett's  Adm'r  v.  Hale,  274. 
Dutton  V.  Simmons,  141,  264. 
Dwight  V.  Bank  of  Mich.,  211. 
Dwyer  v.  Benedict,  287. 
Dyer  v.  Flint,  84,  94. 
Dynes  v.  Hoover,  330. 
Dynes  v.  Robinson,  431. 
Dyson  «.  Baker,  181. 
Dunnenbaum  v.  Scram,  99. 

E. 

Eads  V.  Pitkin,  77. 
Ealer  v.  McAllisler,  -tl6. 
Earl  V.  Bicksford,  543. 

V.  Camp,  77,  91. 

v.  Maiheney,  518. 

V.  Spooner,  445. 


Early  v.  Doe,  273. 

East  Line,  &c.  R.  R.  Co.  v.  Terry, 

374,  375. 
Eastman  v.  Avery,  284. 
Eaton  V.  Badger, 

305,  309,  322,  330,  338- 
Eaton  V.  Bartscherer,  445. 
Eddy  V.  Brady,  428,  429. 
«.  Moore,  20,  397. 
V.  Morse,  402. 
V.  O'Hara,  204. 
Edgarton  v.  Hinchman,  412. 
Edgertou  v.  Third    Municipality   of 
New  Orleans,  237. 
Edmundsont).  DeKalb  Co.,  237. 
Edringlon  v.  Allsbrooks,  345. 
Edson  ffl.  Trask,  199. 
Edwards  v.  Bodine,  453. 
1).  Hughes,  414. 
V.  Prather,  438. 
«.  Toomer, 

315,  320,  823,  331. 
V.  Transit  Co.,  242. 
Egan  V.  Lumsden,  9,  44,  213,  312,  322. 
Eichelberger  v.  Murdock,  196. 
Ela  V.  Shepard,  144,  256, 
Elam  v.  Barr,  88,  99. 
Eldred  «.  Bank,  396. 
Eldridge  v.  Lancey,  187. 

V.  Phillipson,  57,  59. 
«.  Robinson,  4ol. 
Elizabeth  Saving  Inst.  v.  Gerber, 

599. 
Ellicott  v.  Smith,  205. 
Ellington  v.  Moore,  36,  39,  43. 
Elliott  V.  Jackson,  63,  418. 

-y.  Piersal,  324,  330,336. 
Elliot  V.  Stevens,  123. 
Ellis  V.  Goodnow,  560. 
Ellis  V.  Tousley,  524. 
Ellison  V.  Bernstein,  57. 

V.  Mounts,  428,  434. 
V.  Tallon,  89,  432. 
V.  Tuttle,  168. 
Ellsworth  V.  Scott,  400,  413. 
Ellwell  V.  Chamberlain,  543. 
Elmer  v.  Welch,  196,  204. 
Elwyn  V.  Jackson,  472,  473. 
Embra  v.  Silliman,  423. 


CASES    CITED. 


XXV 


Emerson  v.  Littlefield,  1G7. 

Eraersou  v.  Paine,  03. 

Emery  v.  Davis,  199. 

Emery's  Sons  v.  Irving  Nat.  Bank, 

1G4. 
Emmett  v.  Yeigli,  80. 
Emory  Iron  &  Coal  Co.  v.  AVood,  80. 
Eudel  V.  Leibrock,  71,  81,  85. 
Enders  v.  Richards,  57. 
Eudress  v.  Ent,  402,  4;;7. 
English  v.  Wall,  84. 
Ennis  v.  Smith,  17. 
Enos  V.  Brown,  285. 
Epstein  v.  Salorgne, 

9,  10,  13,  20,  265,  402. 
Erie  v.  Knapp,  2;]7. 
Erskine  v.  Hohnbaoh,  144. 

V.  Staloy,  21,  294,  488. 
V.  Stanley,  592. 
Erstein  v.  Rothschild,  325.  323. 
Erwinr.  Com.  Bank,  77,  419,  420,  445. 
Erwin  v.  Ferguson,  115,  127. 
Erwin  v.  Heath,  9,  12,  1:3,  19, 

71,  3(il,  514,  518. 
Espey  V.  Heidenheimer,  417. 
Estabrook  v.  Earle,  194. 
Estbrook  v.  Estbrook,  77. 
Estill  V.  Goodloe,  202. 
Etheridge  v.  Woodley,  391. 
Evans  v.  Andrews,  418. 
,  v.  Davis,  264. 

V.  King,  389,  397,  42G. 

v.  McGlasson,  524. 

V.  Warner,  52. 
Everdell  v.  Sheboygan,  &c.  R.  R. 

Co.,  267,  392,  394. 
Everett  v.  Walcott,  215. 
Ewing  V.  City  of  St.  Louis,  326. 
Excelsior  Fork  Co.  v.  Lukens,  427. 
Exchange  Bank  v.  Gulick, 

200,  217,  373. 
Ex  parte  Fearle  &  Lewis,  598. 
Ex  parte  Haynes,  77,  90,  93,  108. 
Ex  :)arte  R.  R.  Co.,  328,  275,  312, 

320,  330. 
Ex  parte  Reed,  552. 
E.\  parte  Robmson.  77,  90,  93,  108. 
Ex  p.irte  Wilson,  179. 
Ezelle  V.  Simpson,  251. 


F. 


Fairfield  v.  Baldwin,  548. 
V.  Paine,  258. 
V.  Payne,  4bG. 
Falls  V.  Weissinger,  2bO. 
Falsom».  Haskell,  196. 
Fanning  v.  First  Nat.  Bank,  213. 
Fargo  V.  Ames,  498. 
Farley  v.  Farior,  83. 
Farmers'  and  Mechanics'  Bank  v. 

Welles,  351. 
Farmers'  Bank  v.  Beaston,  219,  261. 
Farmers'  Bank  v.  Gettinger,  84. 
Farmers'  etc.  National  Bank  v.  King, 
201,  244. 
Farnhara  v.  Gil  man,  281. 
Farnsworth  v.  Childs,  500. 
Farr  «.  Newman,  220. 
Farrar  v.  Bates,  375. 
Farrow  v.  Barkei-,  38,  43,  44. 
Farrows.  Olmstead,  16. 
Farrington  v.  Edgerley,'f5S8. 
Farrington  v.  Sexton,  379. 
Farris  v.  The  State,  280,  281,  284,  288 
Faulk  V.  Smith,  2G8,  323. 
Faulkner  v.  Waters,  203. 
Faull  V.  Alaska  G  .&  S.  M.  Co.,  250. 
Faver  v.  Bank  of  Ala.,  82. 
Fay  V.  Sears,  358,  362,  303,  367,  373. 
Fay  V.  Smith,  203. 
Fayles  v.  Kelso,  333. 
Fearey  v.  Cummings,  374,  376. 
Feary  ®.  Hotchkiss,  152. 
Featherston  v.  Compton,  354. 
Feazle  v.  Simpson,  450. 
Fechheimer  «.  Hays,  71. 
Fee  V.  Iron  Co.,  549. 
V.  Moore,  477,  496. 
V.  The  State,  ex.  rel.  Pleasant, 

394 
Fellows  V.  Brown,  63. 

V.  Dickens,  421. 

V.  Duncan,  202. 

V.  Miller,  117,  423. 
Fenglin  v.  Cairo  &  St.  Louis  R.  R. 

Co.,  256,  267 
Fenn  v.  Holme,  326. 
Feran  v.  Randolphsen,  158. 


XXVI 


CASES  citp:d. 


Ferguson  v.  Efiker,  453. 

Ferguson  v.  Vance,  314,  321,  403, 408. 

Feruald  v.  Chase,  170,  171. 

Ferris  v.  Ferris,  63. 

Fessenden  v.  Hill,  79,  110. 

Fettyplace  v.  Dutch,  280. 

Field  V.  Adreou,  50. 

V.  Crawford,  196. 
V.  Dortch,  8. 
v.  Jones,  222. 
V.  Livermore,  58. 
«.  McKiuney,  522,  504. 
V.  Park,  139. 
Fielding  v.  Lucas,  39. 
Fife  V.  Clark,  403,  437. 
Fifield  V.  Wooster,  139. 
Final  v.  Backus,  545. 
Finch  V.  Earl  of  Winchelsea,  524. 
First  V.  MU\ei\  161,  219,  220. 
First  National  Bank  v.  Hughes, 

501,  504. 
First  Nat.  Bank  v.  Redman,  67. 
Fish  V.  Field,  202. 
V.  Fowlie,  178. 
V.  Keeney,  361. 
V.  Street,  165,  528. 
Fisher  v.  Consequa,  426. 
V.  Hall,  215. 
«.  Hood,  418. 
1).  Lane,  8,  312. 
«.  McGirr,  559. 
«.  Marsh,  465. 
V.  Tallman,  502. 
Fisk  V.  Weston,  375. 
Fitch  V.  Rogers,  314,  322. 

V.  Ross,  8,  312,  322,  402. 

V.  Waite,  43,  49,  50,  145,  169, 

492,  582,  595. 
?).  White,  168. 
Fitchett  V.  Dolbee,  224. 
Fithian  v.  N.  Y.  &  Erie  R.  R., 

247,  598. 
Fitzgerald  v.  Blake,  178. 

V.  HoUingsworth,  195. 
Fitzgerald's  Case,  50. 
Fitzhugh  V.  Helleu,  172,  256. 
Fitzpatrick  v.  Flagg,  451,  453. 
Fitzpatrick  v.  Flannagau,  8,  13,  20, 
57,  59,  60,  104,  105,  107,  425. 


Fitzsimmons  ■».  Marks, 

8,  10,  312,  322,  335. 
Flake  v.  Day,  27. 
Flanagan  v.  Cutler,  154,  497,  522,  553. 

V.  Wood,  283,  311,  323. 
Flash  V.  Morris,  372. 

V.  Paul,  345,  361. 
Fleitas  v.  Cockrem,  117,  118. 
Fleming  v.  Bailey,  449. 
V.  Burge,  87. 
Fletcher  v.  Fletcher,  168. 
t).  Harcott,  148. 
V.  Menken,  400,  569. 
Flexner  &  Lichter,  v.  Dickerson, 

105,  323. 
Flood  V.  Randall,  23,  66,  141. 
Florence  v.  New  Orleans  Navigation 
Co.,  471,  472. 
Florentine  v.  Barton,  329. 
Flournay  v.  Lyon,  212. 
Flower  v.  Griffith,  88,  97. 
Floyd  V.  Black,  276. 

V.  Hamilton,  450. 
Folsom  V.  Connor,  276. 

V.  Teichner,  413. 
Foot  V.  Stevens,  549. 
Forbes  v.  Scannell,  59;  Hyde,  396. 
Force  v.  Brown,  224,  226.  228. 
V.  Gower,  8,  312,  322. 
V.  Hubbard,  97. 
Ford  V.  Dry  Dock  Co.,  35,  204. 
V.  Dyer,  145,  185. 
V.  Hurd,  119,  357,  420,  421. 
V.  Wilson,  274. 

V.  Woodward,  25,  118,  357,  447. 
Foreman  v.  Carter,  44. 
Forrest  v.  O'Donnell,  397. 
Forsyth  v.  Warren,  274,  467. 
Fortman  v.  Rottier,  436. 
Fortune  v.  St.  Louis,  237. 
Foss  V.  Stuart,  145,  185,  187. 
Foster  v.  Dryfus,  509,  510,  513. 
V.  Dudley,  202. 
V.  Glazener,  331. 
V.  Hall,  39,  81,  427,  430. 
D.  Jones,  77,  361. 
V.  Mabe,  180. 
V.  Roi>es,  162. 
V.  Sinkler,  362,  565. 


CASES    CITED. 


XXVll 


Foster  v.  Sweeney,  449,  450. 
V.  Walker,  203. 
V.  White,  564. 
Foulks  V.  Pegg,  281. 
Fourth  School  Dist.  in  Rumford,  v. 

Wood,  236. 
Fowler  v.  McClelland,  323. 
Fowler  v.  Pittsburg,  &c.  R.  R.  Co., 

214. 
Fowler  v.  Williamson,  365. 
Fox  V.  Abel,  139. 
Foyler  v.  Kelso,  275,  276,  331. 
Francis  v.  Nash,  168. 
Frank  v.  Chaffe,  22,  449,  453,  488. 
V.  Frank,  199,  377. 
V.  Siegel,  164. 
Frankel  v.  Stern,  422,  449. 
Frankenheimer  v.  Slocum,  71. 
Franklin  v.  Claflin,  102. 

Fire  Ins.  Co.  v.  West,  203. 
V.  Gumersell,  187. 
■».  W^ard,  599. 
Free  v.  Hukill,  92. 
Freeborn  v.  Glazer,  417. 
Freeman  v.  Creech,  106. 
V.  Grist,  494. 
V.  Howe,  219,  553,  554. 
«.  Miller,  193,  265,  353,  519. 
V.  Thompson,  274,  275,  333. 
Frellson  v.  Green,  582. 
«.  Stewart,  27. 
French  v.  Chase,  107. 

V.  Hoyt,  276,  315. 
«.  Reel,  555. 
V.  Sale,  485. 
V.  Stanley,  264. 
V.  Wade,  519. 
Fridenbnrg  v.  Pierson,  478. 
Friedlander  v.  Myers,  88. 
Friedlander  v.  Pollock,  55. 
Frost  V.  Bisben,  40. 

V.  Cook,  119,  120. 
V.  Shaw,  525. 
v.  White,  437. 
Frothingham  ■;;.  Haley,  203. 
Frounstein  v.  Rosenhara,  288. 
Fulbright  v.  Cannefox,  549. 
Fullam  V.  Stearns,  256,  265. 
Fuller  V.  Bryan,  41. 


Fuller  V.  Hasbrouck,  21,  580. 

V.  Jewett,  168. 

V.  Nickerson,  23,  66. 

V.  O'Brien,  20!t,  217. 

V.  Sangford,  334. 
Fullerton  v.  Mack,  178. 
Fulton  V.  Fulton,  471. 
Fulton  V.  Heaton,  144. 
Fulweiler  v.  Hughes,  203. 
Funkhouser  v.  How,  214,  563. 
Furgurson  v.  Gilbert,  478. 
Furman  v.  Walter, 

71,  412,  427,  431,  433. 


G. 


Gable  v.  Brooks,  119. 
G  add  is  v.  Lord,  450. 
Gager  v.  Watson,  508. 
Gaines  v-  Bierne,  514. 
Gaines  v.  Paige,  482. 
Gaither  v.  Bellew,  222. 
Gale  V.  Ward,  177. 

Galena  &  Southern  Wisconsin  R.  R. 
Co.  v.  Stahl,  168. 
Gall  V.  Hinton,  157,  165. 
Gallagher  v.  Cogswell,  116,  421,  422, 
Galloway  v.  Bird,  263. 
Galloway  v.  Holmes,  79,  88. 
Gallup  V.  Robinson,  183. 
Garcia  &  Leon  v.  La.  Mut.  Ins.  Co., 

373. 
Gardner  v.  Hust,  548. 
V.  Lane,  538. 

V.  The  Mayor,  538,  542,  543. 
Garity  v.  Gizie,  355. 
Garner  v.  Burleson,  98,  99. 

V.  Campbell,  558. 

V.  Johnson,  428. 

V.  Van  Alstine,  546. 

V.  White,  81,  93. 
Garnet  v.  Macon,  538,  541,  542. 

V.  Wimp,  144. 
Garrett  v.  Logan,  453. 

V.  Tirmen,  427,  429. 
Garvin  v.  Paul,  156. 
Gary  v.  McCown,  256. 

V.  May,  275. 
Gasherier  v.  Apple,  58,  417,  431. 


XXVIll 


CASES    CITED. 


Gasquet  v.  Collins,  4'il2. 

Gass  V.  Williams,  4UD,  436,  509, 

510,  513. 
Gassett  v.  Grout,  223. 
Gates  V.  Bennett,  G7. 

V.  Bnshnell,  492,  582,  595. 
V.  Flint,  177. 
V.  Gates,  281. 
V.  Kerby,  214. 
Gaudy  v.  Hall",  330. 
Gay  V.  Alter,  538. 

V.  Eaton,  302,  321,  413. 
V.  Johnson,  001. 
Gee  V.  Warwick,  223. 
Geer  v.  Chapel,  202. 
Geer  v.  Putnam,  139. 
Gelpcke  v.  Dubuque,  326. 
Gelstrop  v.  Moore,  276. 
Gemmel  v.  Rice,  69,  549. 
Genin  v.  Tompkins,  431,  433. 
George  v.  Bassett,  165,  213. 
George  v.  Balls  Co.,  234. 
Gerber  v.  Ackley,  552. 
Germain  v.   Steani  Tug    Indiana, 

558. 
German  Bank  v.  Dash,  56. 
Gerson  v.  Jamar,  481. 
Gery  v.  Ehrgood,  212. 
Getchell  v.  Chase,  202,  217,  376. 
Gibbon  v.  Bryan,  355. 
Gibbons  v.  Cherry,  353. 
Gibbs  V.  Chase,  145,  363,  281. 

V.  Queen  Ins.  Co.,  247,  249. 
V.  Shaw,  27G,  315. 
Gibson  v.  Jenney,  145,  185,  187. 
V.  McLaughlin,  51,  431. 
V.  Roll,  330. 
V.  Wilson,  251,  405,  485. 
Giddings  v.  Coleman,  210. 
Gilbert  v.  Anthony,  398. 

V.  Crandall,  380,  284. 
V.  Hollinger,  181,  433. 
Gilchrist  v.  West  Virginia  Oil  and 
Oil  Land  Co.,  533. 
Gile  V.  Devens,  141. 
Giles  1).  Ash,  813. 
Gilkesen  v.  Knight,  83. 
Gill  V.  Downs,  418. 
Gill  V.  Wyatt,  51. 


Gillptt  V.  Needham,  276,  315. 
GilJiland*.  Cullem,  2(59. 
Gillispie  v.  Clark,  20,  403,  437. 
Giilispie  «).  Commercial  Mutual  Ma- 
rine Ins.  Co.,  377,  304. 
Oilman  v.  Gilman,  340. 

V.  Hill,  185. 

V.  111.  &  Miss.  Tel.  Co.,  537: 

V.  Wheelock,  485. 
Gilmore  v.  Carnahan,  527. 
Gilmore  v.  N.  Am.  Land  Co.,  525. 
Girard  Fire  Ins.  Co.  v.  Field,  203. 
Girard  Life  Ins.  Co.  v.  Field,  38. 
Givan  v.  McCarroll,  315. 
Glenn  v.  Gill,  222. 
Godbold  V.  Bass,  223. 
Goddard  v.  Cunningham,  120. 
Godfrey  v.  Macomber,  241. 
Goebel  v.  Stephenson,  401. 
Goldsmith  v.  Stetson,  135. 
Goldsticker  v.  Stetson,  427,  438. 
Golson  V.  Powell,  212,  215,  484. 
Goode  v.  Longmire,  180,  187. 
Goodhue  v.  King,  407,  505. 
Goodman  v.  Niblack,  373. 
Goodrich  v.  Church,  381,  390. 
Goodwin  v.  Richardson,  509,  534. 
Goore  v.  McDaniel,  31. 
Gordan  v.  McCurdy,  483. 
Gordon  v.  Baillie,  37. 

V.  GafFey,  63. 

V.  Jenney,  381,388. 

V.  Johnston,  397. 

V.  Webb,  591. 
Gore  V.  Clisby,  197. 
Gore  V.  Masiin,  144. 
Gorman  v.  Swaggerty,  344. 
Goss  V.  Boulder  Co.  Com'rs,  61. 
Goss  V.  Gowing,  100. 
Goudy  V.  Hall,  330,  333. 
Gould  V.  Meyer,  356,  517. 
Goulding  v.  Hair,  154,  497,  553, 
Gove  V.  Varrell,  197. 
Cover  V.  Barnes,  437,  431. 
Governor  v.  Hancock,  553. 
Gowan  v.  Hanson,  74. 
Gower  v.  Emery,  148,  184,  264. 
Gower  v.  Stephens,  288,  323,  314. 
Grace  v.  Rittenberry,  37. 


CASES    CITED. 


XXIX 


Graham  r.  Burcldialter,  27,  116,  118, 
V.  Spencer,  396.  [421. 

V.  De  Lanney,  77. 
V.  IMoore,  202. 
V.  Ruir,  8(1,  <J1,  95. 
Graigle  v.  N()tiiat!:el,  181. 
Graud  Gulf  11.  R.  &  Banking  Co.  v.- 
Conger,  82,  120. 
Grangers'  Ins.  Co.  v.  Turuer,  62,  323. 
Grant  v.  Denel,  113. 

V.  Hawdiiig,  597. 
V.  Lloyd,  538. 
■v.  Shaw,  IGS,  203,  212. 
Graves  v.  Cole,  105,  4.'J.3. 
Gray  v.  Del.  &  Hud.  Canal  Co., 

361,  522. 
V.  McNeal,  330. 
V.  Perkins,  397. 
Gray's  Administrator  v.  Patton's  Ad- 
ministrator, 499. 
Grayson  v.  Veerhe,  218. 
Greely  v.  Rending,  21.  499. 
Green  v.  Hill,  9,  312,  322. 

V.  Neal's  Lesirec,  326. 
V.  Pyne,  156,  236,  424. 
Greene  v.  Beck  with,  36,  38,  41. 
V.  Greene,  39,  159. 
V.  Tripp,  94,  315,  355,  517. 
Greenfield  v.  Wilson,  552. 
Greenleaf  v.  Perrin,  202,  376. 
Greenman  v.  Fox,  503,  560. 
Greentree  v.  Rosenstock,  367,  564. 
Greenwault  v.  Farmer's  Bank,  77, 

79,  135,  227,  276,  315,  423. 
Green  way  v.  Mead,  17. 
Greenwell  v.  Green  well,  £03. 
Greer  v.  Higgins,  502. 
Greer  v.  Rowiey,  237,  240,  250. 
Gregg  V.  Nilson,  27. 
Gregg  V.  Thompson,  328,  333. 
Gregory  v.  Higgins,  206. 
Greiner  v.  Prendergast,  63. 
Grewell  v.  Henderson,  275. 
Grey  v.  Young,  416. 
Gribbon  v.  Freel,  131,  184. 
Grieff"  d.  Betterton,  178. 
Griffin  v.  Helmbold,  231. 
Griffith  V.  Smith,  184. 
Griguon  v.  Astor,  324,  330. 


Grigsley  v.  Love,  493,  597. 
Grinnell  d.  Pliillips,  551. 
Griswold  v.  Shar|)e,  63,  418. 
Groat  V.  Gillispie,  448. 
Groome  v.  Lewis,  222. 
Grosvenor  v.  Bank,  168,  169. 
Grover  v.  Buck,  89,  282. 
Grubbs  v.  Colter,  '20,  321. 
Guerin  v.  Hunt,  135. 
Guild  V.  Holbrook,  203. 
Guile  V.  McNanny,  99. 
Guise  V.  O'Daniel,  40. 
Gunn  V.  Howell,  356,  361,  560,  563. 

V.  Mason,  276,  332. 
Gutman  v.  Va.  Iron  Wokrs  Co., 

88,  103. 
Gutterson  v.  Morse,  215. 
Guy  V.  Pierson,  276. 

H. 

Haas  V.  Shaw,  525. 

Haber  v.  Nasitts,  58. 

Habich  v.  Folger,  396. 

Hacker  v.  Stevens,  342,  582,  597. 

Hackettstown  Bank  v.  Mitchell, 

39,  159. 
Hackley  v.  Kanitz,  367,  374. 
Hackley's  Exr.  v.  Swigert,  536. 
Hadley  v.  Peabody,  230,  237. 
Hafley  «.  Patterson,  88,  102. 
Hagan  v.  Burch,  4'23. 
V.  Lucas,  509. 
Hagedon  v.  Bank  of  Wisconsin,  223. 
Hagerstown  Bank  v.  Weckler,  204 
Haggart  v.  Morgan,  36,  39,  40. 
Haggerty  v.  Wilber,  179,  180,  187. 
Hagood  V.  Hunter,  99,  100. 
Hahn  v.  Kelly,  271. 
Haiglette  v.  Leake,  53. 
Hakes  v.  Shupe,  322,  335,  338,  513 
Halberl  v.  Slinson,  597. 
Haldeman  v.  Hillsborough  &  Cin.  R. 
R.  Co.,  583. 
Hale  V.  Chandler,  77,  79,  87,  480. 

V.  Cummings,  581. 

V.  The  City  of  New  Orleans, 
453. 
Halett  V.  Nugent,  394. 


XXX 


CASES    CITED. 


Hall  V.  Brazelton,  105,  107,  41G. 
V.  Brooks,  2!)1. 
V.  Filter  Manf.  Co.,  2-13. 
V.  Gould,  500. 
«.  Grogan,  129. 
V.  Ilowd,  330. 
V.  Page,  212. 
«.  Palmer,  394. 
V.  Walbridge,  491. 
V.  Williams,  200. 
Hallai>d  v.  Smit,  522. 
Hallett  V.  Rigliters,  270. 
Halley  v.  Jackson,  106. 
Hallock  V.  Belcher,  450. 
Halpin  v.  Barringer,  196. 
Halpine  v.  Hall,  184. 
Halsey  v.  Fairbanks,  165. 
Hamble  v.  Owen,  117. 
Hamillon  v.  Brj'ant,  407. 
V.  Burum,  331. 
V.  Knight,  92,  156. 
Hammett  v.  Morris,  386,  527. 
Hamnill  v.  Phenicie,  117. 
Hancock  v.  Colyer,  203,  492. 

V.  Henderson,  171,  256. 
Handy  v.  Broug,  63. 

V.  Dobbin,  165,  168. 
V.  Ins.  Co.,  391. 
Hanna  v.  Bry,  222. 
V.  Guy,  536. 
V.  Lauring,  361. 
V.  Loring,  63. 
Hannahs  v.  Felt,  586. 
Hannibal  &  St.  Jo.  R.  R.  Co.  v. 

Crane,  28. 
Hanover  v.  Turner,  39. 
Hansen  v.  Butler,  223. 
Hanson  v.  Dow,  136,  137,  423. 
Haralson  v.  Newton,  55,  98,  323. 
Harbinson  v.  McCartney,  161,  219. 
Hardcastle  v.  Hickman,  509. 
Hardeman  v.  Morgan,  22,  441,  443. 
Hardesty  v.  Campbell,  428,  431. 
Harding  v.  Larkin,  453. 
Hardy  v.  Trabue,  100. 
Hargadine  v.  Van  Horn, 

77,  84,  92,  103. 
Harger  v.  SpoflFord,  22,  444. 
Haris  v.  Trapp,  420. 


Harkness  v.  Hyde,  390. 
Harlow  V.  Becktle,  274. 
Ilarmen  v.  Tappenden,  4.57. 
Harmon  v.  Birchard,  354,  562. 
Ilarnden  v.  Gould,  158. 
Harper  v.  Bell,  402,  437. 

V.  Commercial,  &c.  Bank, 

481 
V.  Scudder,  417. 
Harrell  v.  Whitman,  202. 
llarriman  v.  Gray,  281. 
Harrington  v.  Loomis,  69. 
Harris  v.  Capell,  57. 

V.  Grodner,  269,  274. 

V.  Gwin,  19. 

V.  Hanson,  145,  188. 

V.  Hardeman,  8,  308,  312, 

319,  320,  331,  336,  392. 
V.  Linnard,  426. 
«.  Phoenix  Ins.  Co.,  216. 
V.  Somerset  &  Ken.  R.  R.  Co., 
240 
V.  Taylor,  427,  430. 
Harrison  v.  King,  81,  417. 
V.  Pender,  477. 
D.  Trader,  21. 
Hart  V.  Anthony,  227. 
V.  Chalker,  495. 
V.  Smith,  393. 
V.  Swayue,  538,  541. 
Hartford  Quarry  Co.  v.  Pendleton, 

408. 
Hartle  v.  Long,  224. 
Hartman  v.  Olvera,  196,  204,  526. 
Harvard  College  v.  Gore,  39,  40. 
Harvey  v.  Huggins,  331. 
Haskell  v.  Bartlett,  274. 
V.  Haskell,  199. 
Hastings  v.  Phoenix,  430. 
Hatch  I.  Bailey,  160. 
V.  Fowler,  282. 
V.  Lincoln,  160. 
V.  Smith,  591. 
Hathaway  v.  Davis,  425. 

V.  Laribee,  172,  256,  263. 
V.  Russell,  367. 
Hatry  v.  Sliuman,  427,  430. 
Haust  V.  Burgess,  190,  199. 
Haven  v.  Low,  159,  212. 


CASES    CITED. 


XXXI 


Haven  v.  Wentworth,  202,  37G. 
Havis  V.  Taylor,  43,  51. 

V.  Trapp,  437. 
Plawes  V.  Waltham,  206. 
Hawkins  v.  Albright,  427. 
V.  G<a.  Bank.  384. 
V.  Graham,  386. 
Hawley  v.  Atherton,  205. 

«.  County  of  Litchfield,  234. 
V.  Del  mas,  98,  99. 
V.  Mead,  276. 
Hawthorne  v.  St.  Louis,  337. 
Hayden  v.  Sample,  448,  450,  451,  453. 
Haydon  v.  Bank  of  Wis.,  222. 
Hayes  v.  Gillispie,  258. 
Haynes  v.  Gates,  56 L 

V.  Knowles,  15G,  361. 
V.  Morgan,  284. 
V.  Powell,  44. 
V.  Small,  25G,  264,  567. 
Hays  V.  Anderson,  368. 

V.  Lycoming  Fire  Ins  Co.,  250. 
Hayward  v.  George,  154,  553. 
Haywood  v.  Collins,  27,  275,  276, 

321,  330,  331,  333. 
p.  Cunningham,  23,  66. 
V.  McCrory,  * 

275,  276,  321,  333,  334. 
®.  Eussell,  274. 
Hazelrigg  v.  Donaldson, 

402,  437,  438. 
Hazzard  v.  Agricultural  Bank,  35. 
Head  v.  Merrill,  239,  3  9,  394. 
Heagle  v.  Wheeland,  557. 
Hearn  v.  Adamson,  356. 

V.  Crutcher,  199,  231. 
V.  Foster,  313. 
Hearne  v.  Keath,  303.' 
Heas  V.  Shaw,  525. 
Heath  v.  Keyes,  145. 

V.  Lent,  448. 
Hebel  ■».  Amazon  Ins.  Co., 

193,  237,  365. 
Hecht  V.  Green,  310. 
HeflFernan  v.  Gr3nnes,  361. 
Heffner  v.  Guuz,  389,  393. 
Heibnerw.  Chave,  338. 
Heidenback  v.  Schland,  37. 
Hellmaa  v.  Fowler,  93,  428,  451. 


Helm  V.  Gray,  485. 
Helmer  v.  llehm,  530. 
Heminway  v.  Saxlon  et  al.,  179. 
Hemmenway  v.  Pratt,  202. 
Hemmenway  v.  Wheeler, 

177,  280,  314. 
Hemshein  v.  Levy,  321. 
Henderson  v.  Bliss,  477. 
V.  Drace, 

127,  431,  425,  430. 
V.  Hamer,  19. 
V.  Overton,  543. 
V.  Travis,  432. 
Hendrick  v.  Cleveland,  330. 
Hennen  v.  Forget,  370. 
Henrie  v.  Sweazy, 

88,  309,  310,  312,  331. 
Henry  v.  Gold  Park  Mining  Co., 

403,  406. 
p.  Mitchell,  173,  356. 
V.  Quackenbush,  159,  180, 187 
Herbert  «.  Hanrick,  17. 
Herbert's  Heirs  v.  Babin,  471. 
Herdon  v.  Forney,  446. 
Hergman  v.  Dettlebach,  171. 
Hermann  v.  Amedee,  412,  433. 
Herndon  v.  Pickard,  173. 
Herusheim  v.  Levy,  56,  433. 
Herring  ■».  Hoppock,  181. 
Hershfield  v.  Claflin,  506,  535. 
Hershy  v.  Clarksville  Institute,  481. 
Hess  V.  Bower,  94. 
V.  Shorb,  333. 
Hewes  v.  Cooper,  398. 

V.  Parkman,  187. 
Hewey  v.  Champion,  21. 
Hewitt  V.  Wagar  Lumber  Co., 

241,  358,  375. 
Hewitt  V.  Wheeler,  200. 
Hewson  v.  Tootle,  483. 
Heyn  ■;;.  Farrar,  417. 
Hiatt  V.  Bullene,  503. 
Hibbard  v.  Clark,  235. 
Hichins  v.  Lyon,  467. 
Hickey's  Lessee  v.  Stewart,  336,  338. 
Hicks  V.  Chapman,  234. 

V.  Gleason,  343,  593. 
Hickman  v.  Flenoriken,  99. 
Hickok  V.  Buell,  495.     • 


xxxn 


CASES    CITED. 


Iligdon  V.  Vanghan,  401. 
Higgins  V.  Gra(;e,  4!i9,  513. 
High  V.  Wilson,  145. 
Hightower  v.  Slaton,  236. 
Hildrelh  v.  Fitts,  185. 
Hill  V.  Baker,  581. 

«.  Beach,  221,  599. 

V.  Bond,  94,  417. 

V.  Child,  494. 

V.  Culan,  433. 

V.  Cunningham,  417,  428. 

V.  Figley,  144. 

V.  Foison,  275. 

«.  Harding,  20,  402,  404. 

V.  Hunnewell,  106,  410. 

«.  La  Crosse  &  M.  R.  Ry.  Co., 

220,  284. 

V.  Pride,  331. 

V.  Scales,  398. 

V.  Whitney,  63,  432. 
Hiller  v.  Lampkin,  319,  464. 
Hills  V.  Moore, 

20,  98,  105,  402,  404,  433. 
Hilton  V.  Ross,  80,  91,  322,  397. 
Hinds  V.  Fagebank,  53,  100. 

V.  Miller,  267,  514. 
Hine  v.  Dodd,  501. 
Hines  v.  Chambers,  27,  144,  323. 

V.  Kimball,  483. 
Hinman  v.  Rushmore,  334. 
Hinsdill  v.  Safford,  206. 
Hirsch  v.  Hutchinson,  58. 
Hirsh  Brothers  v.  Thurber,  69,  137. 
Hirth  v.  Pfeifle,  205,  362. 
Hisler  v.  Carr,  420. 
Hitchcock  V.  Aicken,  338. 
1).  Egerton,  168. 
«.  Giddings,  538,  543. 
V.  Holmes,  181. 
V.  Miller,  198. 
Hite  V.  Fisher,  267. 
Hitchman  v.  Garrard,  83,  103. 
Hoag  V.  Hoag,  218,  224. 
Hoagg  V.  Howard,  21,  501,  524. 
Hoar  V.  Marshall,  224. 
Hobbs  V.  Carr,  162. 
Hobson  V.  Emjiorium  Real  Estate  & 
Manf.  Co.,  9,  310,  312,  321,  4G7. 
Hodo  V.  Beuecke,  67. 


PTodge  V.  Norton,  409, 
Hodges  1).  Baiieham,  17. 
Hodson  V.  Tootle,  433. 
Hotlnian  v.  Fitzwilliams,  350. 
11.  Simon,  514. 
V.  Wetherell,  221,222,  2L'3. 
Hoffner  v.  Gunz,  322. 
Hoge  V.  Ijforton,  436. 
Hoggett  V.  Emerson,  41. 
Hogtaling  v.  Osborn,  139. 
Hoisington  v.  Armstrong,  166. 
Holbrook  v.  Baker,  212. 
V.  Wa'ers,  224. 
Holcomb  V.  Foxworth,  446. 
Holland  v.  Pettit,  506. 

V.  Smith,  207,  522,  564. 
Holliday  v.  Cohen,  55. 
Holliday  «.  Ward,  17. 
Hoi li man  v.  Carroll,  551. 
Holliugsworth  v.  Barbour, 

271,  273,  815. 
Hollister  v.  Goodall,  181. 
Hollovvay  v.  Herryford,  417. 
Holman  v.  Fisher,  19,  221. 
Holmes  v.  Barclay,  63. 

«.  Cooper,  513. 

v.  Russell,  131. 

V.  Weaver,  453. 
Holstein  Manf.  Co.  v.  Lea,  88,  97. 
Hoi  ton  V.  South  Pac.  R.  R.  Co.,  374, 
Holyoke  v.  Adams,  407. 
Homaii  V.  Brinckerhoff, 

118,  409,  421,  436. 
Home  Mutual  Ins.  Co.  v.  Gamble, 

561. 
Hoot  V.  Spade,  453. 
Hooton  V.  Gamage,  560. 
Hopkins  v.  Nichols,  9S,  99,  100. 
Hopkirk  v.  Bridges,  27,  305,  323,  330. 
Hopper  V.  Fisher,  276. 
Hopson  V.  Dinan,  198. 
Horn  V.  Bayard,  449. 

V.  Cole,  167. 
Horton  v.  Beckman,  133. 

V.  Grant,  199. 
Hoskins  v.  Jolinson,  205. 
Hotchkins  v.  McVicker,  381. 
Houghton  V.  Ault,  36. 

V.  Davenport,  160. 


CASES    CITED. 


zxxiK 


IToughton  V.  Lee,  241. 

House  V.  Bait.  &  O.  R.  R.  Co.,  203. 

V.  Hamilton,  50,  428.  429. 
Housemaa  v.  Cargo  of  the  ydiooner 
North  Carolina,  405. 
Houston  V.  Belcher,  118. 
V.  IVIcClnney,  18. 
V.  Wolcott,  361. 
How  V.  Field,  197. 
Howard  v.  Ciark,  492. 

V.  Daniels,  172,  255. 
V.  McLaughlin,  522,  504. 
«.  North,  538. 
V.  Oppenheimer,  100,  423. 
«.  Whittemore,  280. 
V.  Williams,  145,  185,  187. 
Howell  V.  Freeman,  597. 

V.  Kingsbury,  93,  95, 
Howes  V.  Spicer,  178,  566. 

c.  Waltham,  491. 
Rowland  v.  Spencer,  1G8. 
Hoyl  V.  Christie,  224,  225. 
V.  Robinson,  206,  491. 
V.  Swift,  202,  376. 
Hozeman  v.  Rose,  77. 
Hubbard  y.  Savage,  495. 
Hubbardstown  Lumber  Co.  v. 

Covert,  79. 
Hucherson  v.  Ross,  420. 
Hudgens  v.  Hudgens,  538. 
Hudson  V.  Hunt,  205. 
Huft'  V.  Hutchinson,  437. 
Hugg  V.  Booth,  202. 
Hughes  v.  Brooks,  448. 
1).  Martin,  102. 
V.  Sprague,  214. 
V.  Stinnett,  102,  420. 
V.  Tennison,  404. 
Hull  V.  Blake,  355. 
Huls  V.  Buntin,  333. 
Hume  V.  Conduitt,  560. 
Humphrey  v.  Wood,  27. 
Humphreys  v.  Pratt,  148,  264. 
Hunt  V.  Coon,  375. 
V.  Ely,  206. 
V.  Hapgood,  830. 
V.  Hunt,  39,  159. 
V.  Johnson,  305,  828,  338. 
V.  Norris,  9. 


Hunt  V.  Stevens,  210,  222. 
V.  Strew,  94. 
V.  WicklltTe,  274. 
Hunter  v.  Brown,  401. 
V.  IMartin,  524. 
V.  Peaks,  102,  186. 
Huntington  v.  Blaisdell,  177,  281. 

V.  Risden,  199,  209. 
Huntley  v.  Stone,  196,  222. 
llurlburt  v.  Hicks,  221,  599. 
Ilurst  V.  Hurst,  524. 
Hurt®.  Redd,  21,  495. 
Huswell  V.  Parsons,  525. 
Hutchius  V.  Evans,  206. 

V.  Hawley,  202,  376. 
Hutchinson  v.  Lamb,  63. 
Huxley  v.  Harrold,  496,  507. 
Hyde  v.  Nelson,  432. 
Hynson  «.  Taylor,  63. 


I. 


Ide  V.  Fassett,  280. 

Ide  V.  Harvvood,  170. 

111.  Cent.  R.  R.  v.  Cobb,  243. 

Ilsley  V,  Nichols  et  al.,  179. 

Inbusch  V.  Farwell,  601. 

Ingalls  V.  Herrick,  162,  163. 

IngersoU  v.  Mongam,  538,  543. 

Ingle  V.  McCurry,  18,  278. 

Inhabitants  of  Turner  v.  Buchfield.  40 

Ind.  &  St.  L.  Ry.  Co.  v.  Horst,  828. 

Inman  v.  Stratton,  40-,  437. 

In  re  Alex.  Thompson,  36,  39,  40,  4  t. 

Bellows,  16. 

Bliss,  77. 

Faulkner,  77,  108. 

Glen  Iron  Works,  245. 

Griswold,  477. 

Hollingshead,  87. 
Ins.  Co.  of  North  America  v.  Swine- 
ford,  391. 
Insler  v.  Lane,  159,  162. 
Ireland  v.  Webber,  512. 
Irvin  V.  Howard,  20,  87,  100,  103, 

127,  403,  416,  421. 
Isaacs  V.  Edwards,  427,  430. 
Isbam  V.  Ketchum,  413,  477. 
Ivens  V.  Ivens,  308. 


XXXIV 


CASES    CITED. 


Ives  V.  Bartholomew,  456. 
V.  Curtis,  50. 
z.  Vanscoyoc,  203. 


Jackman  v.  Anderson,  512. 
Jackson  v.  Babcock,  330. 

V.  Bank  of  U.  S.,  8,  199. 

v.  Burgott,  500. 

T.  Burke,  53,  85. 

-p.  Chamberlain,  501,  524. 

«.  Cornell,  59. 

«.  Esty,  330. 

7).  Given,  501. 

V.  Perry,  36. 

V.  Post,  501. 

T.  Sharp,  500. 

T.  Shipman,  82. 

«.  Sprague,  273. 

T.  Stanley,  120,  127,  421. 

V.  Warwick,  117,  118,  421. 

«.  Will  aid,  168. 
Jackson's  Appeal,  470. 
Jacob  V.  U.  S.,  99. 
Jacobs  V.  Hogan,  83,  477. 
Jacoby  v.  Gogell,  63,  87. 
Jaeger  i).  Stelling,  399,  509. 
Jaffrey  v.  Purtell,  512. 
James  v.  Dowell,  95,  426,  429. 

V.  Stratton,  525. 
Jaquett  v.  Palmer,  221. 
Jarvis  v.  Barrett,  410. 
Jasper  County  v.  Chenault,  127,  421. 
Jaycox  V.  Chapman,  118,  410,  438. 
Jefferson  County  v.  Swain,  156. 
Jetfray's  Appeal,  342. 
Jeflries  v.  Harvie,  251. 
Jemel  v.  Howe,  50. 
Jeuliins  v.  Lemonds,  553. 

D.  Lester,  229. 
Jenks  V.  Osceola  Township,  235,  237. 
Jenners  v.  Doe,  59. 
Jenness  v.  Wendell,  162. 
Jenney  v.  Delesdernier,  281. 
Jennings  v.  Joiner,  446. 
Jewel  V.  Howe,  99,  419. 
Jewell  V.  Mills,  552. 
Jeter  v.  Hewitt,  326. 


Jewett  V.  Bacon,  205. 
Johns  V.  Church,  185, 
Johnson  v.  Bell,  497. 
V.  Buell,  389. 
«.  Clark,  502. 
V.  Day,  138. 
V.  Delbridge,  385. 
V.  De  Witt,  413,  416. 
v.  Dexter,  214,  235,  387. 
«.  Dodge,  513. 
V.  Edson,  280,  581. 
«.  Evans,  525. 
V.  Farmers  Bank,  448. 
■».  Gorham,  342,  593. 
V.  Griftith,  489,  597. 
V.  Hale,  100. 
V.  Hannah, 

27,  77,  103,  275,  323. 
V.  Hersey,  241. 
«.  Holley,  507. 
T.  Huntington,  545. 
V.  Johnson, 

305,  309,  321,  330,  834. 
v.  Laughlin,  53. 
V.  Layton,  275,  333. 
v.  Lowry,  49. 

■».  McAllister's  Assignee,  59. 
v.  McCutchings,  354. 
v.  Moss,  252,  253. 
V.  Pace,  236. 
V.  Sharp,  504. 
V.  Thweatt,  59. 
Johnston  r.  Fellermau,  548. 
Johnston  v.  Field,  57. 
Joice  V.  Puydras  De  La  Lande,  471. 
Jolland  V.  Stainbridge,  501. 
Jones  V.  Anderson,  118,  119,  421. 
V.  Andrews,  396. 
V.  Bank  of  Northern  Liberties, 
V.  Byrd,  390.  [201. 

T.  Crews, 

194,   196,   197,  202,  203. 
V.  Doles,  451,  452. 
V.  Etna  Ins.  Co.,  196. 
V.  Gorham,  223. 
T.  Gresham,  8. 
D.  Hart,  507. 
D.  Haward,  460. 
«.  Hunter,  19. 


CASES    CITED. 


XXXV 


Jones  V.  Jones,  161,  219,  333,  397, 

509,  COO. 

V.  Miller,  545. 

V.  N.  Y.  &  Erie  R.  R.  Co., 

247,  344. 

V.  Norris,  168. 

et  al.  V.  Peasly,  403. 

V.  Pope,  77. 

V.  Winchester,  227. 

V.  AYitter,  o61. 
Jordau  v.  Hazard,  418. 
Judah  V.  Stephenson,  305,  322. 
Judd  V.  Fox,  558. 
Judson  V.  Lake,  17. 


K. 


Kalm  V.  Herman,  102,  422. 
Kane  v.  Cloiigh,  358. 
Kanouse  v.  Dermedy,  409. 
Kansas  City,  St.  Jo.  &  C.  B.  R.  R. 

Co.  V.  Campbell,  329. 
Karnes  v.  Pritchard,  375. 
Katz  V.  Sorsby,  203. 
Kaufl'man  v.  Jacobs,  208,  365. 
Kearney  v.  McCullough,  416. 
Keating  v.  Spink,  272,  315. 
Keeler  v  Keeler,  391. 

V.  Wood,  453. 
Kegel  V.  Schrenkheisen,  98,  99,  100. 
Keigher  v.  McCormick,  108. 
Keith  V.  Harris,  597. 

V.  Levi,  344. 

«.  Stetter,  90,  322,  433. 
Kelley  v.  Strayer,  71. 

V.  Whiting,  484. 
Kellogg  ».  Carrico,  272. 

«.  Freeman,  361,  514,  521. 
v.  Miller,  420,  428,  429. 
Kelly  V.  Archer,  420. 

V.  Babcock,  196. 

«.  Beauchamp,  451. 

V.  Board  of  Public  Works,  600. 

V.  Dexter,  285. 

«.  Dill,  166. 

«.  McMinniman,  223. 

V.  Roberts,  196,  213. 

V.  ^eymouth,  376. 
Kelsey  v.  Kendall,  499. 


Kempe's  Lessee  v.  Kennedy, 

329,  330. 
Kendall  v.  Brown, 

403,  417,  433,  436,  438. 
V.  Irvine,  259. 
v.  Morse,  200. 
■B.  White,  264. 
Kennedy  v.  Aldridge,  223. 

V.  Baillie,  38,  58,  548. 
V.  Brent,  183,  342,  582,  597. 
«.  Dillon,  77. 
».  H.  L.  &  S.  Society,  240, 
V.  Meacham,  455.  [250. 

«.  Morrison,  102,  403,  437. 
V.  Pike,  257. 
Kennon  v.  Evans,  SO,  91. 

V.  Ficklin,  493. 
Kenrick  v.  HufF,  507. 
Kergin  v.  Dawson,  212. 
Kerr  v.  Hitt,  272. 
V.  Mount,  71. 
V.  Smith,  77. 
Kerry  v.  Bower,  597. 
Kessey  v.  McHenry,  495. 
Ketchum  v.  Ketchum,  413. 

V.  Vidvard,  53. 
Kettle  V.  Harvey,  202. 
Keyser  v.  Mitchell,  200,  294. 

V.  Rice,  238,  239. 
Kibbe  v.  Kibbe,  3o8. 
Kidder  v.  Hadley,  276, 
v.  Packard,  206. 
Kiefer  v.  Webster,  89. 
Kilbourne  v.  Woodworth, 

8,  10,  308,  312,  323. 
Kilcrease  v.  Blythe,  276,  332. 
Kimball,  &c.  Man.  Co.  v.  Vroman, 

545. 
Kimball  «.  Macomber,  198,  357. 

V.  Plant,  206. 
Kimbrough  v.  Davis,  564. 
Kiucaid  v.  Neal,  413,  478. 
King  V.  Bucks,  173,  252,  253. 
V.  Cooper,  58. 
V.  Harrington,  69,  275,  315, 

320,  321,  331,  333,  335. 
V.  Hubbell,  146,  158. 
V.  Moore,  221,  599. 
V.  Thompson,  69,  85. 


XXXVl 


CASKS    CITED. 


King  V.  Vance,  9,  10,  203,  311,  5G5. 
Kingman  v.  Perliins,  3(i"3. 
Kingsland  v.  Cowman,  93. 

V.  Worsham,  43,  45. 
Kingsley  «.  Mo.  Fire  Co.,  205. 
Kinsey  v.  Wallace,  22,  444. 
Kipp  V.  Fullerton,  549. 
Kirby  «.  Schoonmaker,  5!). 
Kirli  V.  Morris,  397,  oOO. 
Kirkman  v.  Patton,  4'-7,  428. 
Kirlisey  •».  Bates,  352. 

V.  Dubose,  144. 
T.  Fike,  77. 
V.  Jones,  450,  456. 
Kissam  v.  Marshall,  425. 
Klauber  «.  Wright,  309. 
Klemm  v.  Devves,  390. 
Klenk  v.  Schwalm,  87,  98,  100. 
Klepper  v.  Powell,  51. 
Klinefelter  v.  Blaine,  168. 
Knap  V.  Sprague,  288. 
Knapp  V.  Jay,  512. 
Knight  V.  Clyde,  218. 
«.  Griddle,  168. 
«.  Dorr,  106,  425. 
Knights  V.  Paul,  361. 
Knisely  •».  Evans,  207. 
Knox  V.  Atterburg,  423. 

■».  Mason,  46. 

r.  Protection  Ins  Co., 

203,  239,  240. 

■».  Waldoborough,  39. 
Kolb  V.  Kheney,  69,  85. 
Kraft  v.  Paths,  198. 
Krippendorf  v.  Hyde,  55^>,  557. 
Kritger  v.  Smith,  507. 
Kruse  v.  Wilson,  84. 
Knglar  v.  Shreve,  36,  45. 
Kuhn  V.  Graves,  582. 

V.  McMillan,  410. 
Kyle  V.  Connelly,  119. 
Kyles  V.  Ford,  546. 

L. 

Lackey  v.  Seibert,  549,  586. 
Lackland  v.  Garesche,  200. 
Laclede  Bank  v.  Keeler,  474. 
Ladd  V.  Gale,  219. 


Ladd  V.  Hill,  187. 

■i\  Jacobs,  560. 
«.  North,  201. 
Lafayette  Ins.  Co.  v.  French, 

245,  246,  247,  277,  304. 
Laidlaw  v.  Morrow,  522. 
Lake  Shore,  &c.  Ky.  Co.  v.  Hunt, 

257,  258. 
Lamb  v.  Beldeu,  581,  582. 
V.  Day,  285. 
v.  Stone,  216. 
Lambard  v.  Pike,  173,  256. 
Lambden  v.  Bowie,  417,  427,  431. 
LambertOD  v.  Merchants'  Nat.  Bank, 

501. 
Lambeth  v.  Turnbull,  159. 
Lammon  v.  Feusier,  551,  553,  556. 
Lamphin  v.  Douglass,  86,  97,  322. 
Landers  v.  Staten  Island  P.  P.  Co., 

390. 
Landrey  «.  Chayret,  367,  379. 
Lane  v.  Fellows,  92. 

V.  Jackson,  177,  314. 
V.  Leech,  389,  391. 
«.  Nowell,  194. 
«.  Shears,  272,  315. 
v.  Vick,  326. 
Langdon  «.  Lockett,  222,  599. 
Langford  -e.  Ottumwa  Water  Power 
Co.,  2j0,  353. 
Lankin  -b.  Douglass,  80. 
Larabee  v.  Knight,  372. 
Larrabee  v.  Walker,  202. 
Latham  v.  Edgert^n,  330. 
Lathrop  v.  Blake,  161,  219,  262,  281. 

V.  Snyder,  88,  97. 
Laughran  v.  Kelly,  358,  362,  367,  373. 
Laughton  ■».  Atkins,  17. 
Laurence  v.  Yeatman, 

118,  321,  331,  396. 
Lawless  v.  Hackett,  540. 
Lawlin  v.  Clay,  274. 
Lawrence  ■».  Burnham,  158. 

V.  Connell,  537,  541. 

«.  Englesby,  17. 

V.  Featherston,  117,  419. 

T.  Hagerman,  25,  449,  456. 

V.  Jones,  416,  430,  432. 

V.  Lane,  563. 


CASES    CITED. 


XXXV 11 


Lawrence  v.  Rice,  280. 
V.  Smith,  327. 
V.  State,  275. 
v.  Stead  man,  85. 
V.  Strattou,  495. 
LawtoQ  V.  Brauch,  520. 

«.  Kei],  425. 
Lawyer  v.  Langhans,  90. 
Lea  V.  Maxwell,  260. 
Lea  V.  Vail,  127,  421. 
Leach  v.  Cook.,  157. 

«.  Swan,  331,  333. 
«.  Thomiis,  422. 
Leah  v.  Greenwood,  449. 
Leake  «.  Moorman,  27,  430. 
Learned  v.  Vanderbui'gh,  177. 
Leathers  v.  Cannon,  42. 
Lecesue  v  Cotton,  406. 
Ledyard  v.  Butler,  524. 
Lee  V.  CarrolltOQ  Savings  and  Loan 
Absociation,  518. 
«.  Gansel,  179. 
V.  O'Shannessy,  389,  392. 
«.  Parmer,  361. 
e.  Peters,  86,  91,  102. 
V.  Ryall,  514. 
Leefe  v.  Walker,  202. 
Leffingwell  v.  Warren,  326. 
Legg  V.  Willard,  162. 
Legro  V.  Staples,  211. 
Lehman  ®.  Berdin,  325,  410,  436. 
Leiber  v.  Union  Pac.  R.  R.  Co.,  528. 
Leibman  v.  Ashbacker,  21,  511. 
Leigh  V.  Smith,  514. 
Leighton  v.  Heagerty,  374. 
Leingardt  ».  Deitz,  360. 
Leiteusdorfer  v.  Webb,  57,  58. 
Lemle  v.  Ronton,  400. 
Le  Neve  v.  lie  Neve,  500. 
Leon  V.  Galceran,  559. 

V.  Scram,  478. 
Leonard  v.  Bryant,  309,  323. 
V.  Davis,  162. 
«.  Stent,  85,  91. 
Le  Roy  v.  E.  Saginaw  City  Ry., 

77,  79. 
Leroy  v.  East  Saginaw  Ry.,  91. 
Lesher  v.  Getman, 

170,  171,  181,  184,  264. 


Leslie  tj.  Merrill,  208. 

Lessee  of  Adams  v.  Jeffries,  315. 

Lester  v.  Abbott,  59. 

0.  Cummings,  81. 

V.  Watkins,  19. 
Levitzk>  v.  Canning,  453. 
Levy  V.  Cowan,  156. 

V.  Elliott,  102,  322. 
V.  Levy,  88;  Fitzpatrick,  328. 
V.  Millman,  91,  92. 
Lewenthall  v.  Miss.  Mills,  19. 
Lewis  V.  Buck,  219. 

«.  Dubose,  135,  202. 

«.  Dunlop,  370,  373. 

e.  Faul,  352. 

«.  Harwood,  212,  474. 

«.  Kennedy,  53,  85. 

®.  Locke,  545. 

V.  Lyman,  160. 

«.  Mansfield,  563. 

«;.  Quiuker,  262. 

9).  Smith,  202. 

V.  Woodfolk,  354. 

«.  Wright,  432. 
Lexington  and  Big  Sandy  R.  R.  Co. 
«.  Ford  Place  Glass  Co.,  529. 
Libbey  v.  Hodgdon,  35,  240. 
Lick  V.  Madden,  139,  486,  489. 
Lieber  v.  Union  Pac.  R.  R.  Co.,  528. 
Life  Ass'n  of  America  v.  Fassett,  415 
Lightle  V.  Berning,  398. 
Lightner  v.  Steinagel,  219. 
Likens  v.  McCormick,  275. 
Lillard  v.  Carter,  105,  106,  107. 
Lincoln  v.  Strickland,  £57,  265. 

V.  Tower,  312,  335. 
Lindan  v.  Arnold,  361. 
Liuder  v.  Aaron,  120. 
Lindsay  v.  Lamed,  456. 
Lindsley  v.  Malone,  427. 
Lipscomb  v.  McClellan,  439. 
Lithgow  V.  Byrne,  83. 
Little  V.  Hale,  206. 
Littlejohn  v.  Lewi.s,  360. 

V.  Wilcox,  451. 
Littleton  Bank  v.  Portland,  &c.  R.  R. 
Co.,  244. 
Livengood  v.  Shaw,  101. 
Livermore  v.  Rhodes,  433. 


xxxvm 


CASES    CITED. 


Livermore  v.  Swasey,  16. 
Liverjiool  Ins.  Co.  v  ]\rass.  228. 
Liverpool,  &c.  Navigation  Co.  v. 

Agar  &  Lelong,  GOO. 
Livingston  v.  Smith,  144,  335. 
Lobdell  V.  Bushuell,  157. 
Locke  V.  Lewis,  59. 
Loclvhart  v.  Woods,  450,  456. 
Loder  v.  Littlefield,  43. 
Lodge  V.  State  Bank,  b96. 
Lodor  V.  Baker,  222. 
Loket  V.  Neufville,  421. 
Lomerson  v.  Huffman,  202,  861,  375. 
Long  n-  Murpliy,  414,  483. 
Loolier  v.  Halcomb,  457. 
Lord  V.  Baldwin,  107. 

■».  Devendorf,  59. 
Loring  v.  Wittich,  389,  392. 
Lorman  ■».  Phoenix  Ins.  Co., 

359,  367,  375. 
Lorrain  v.  Higgins,  108. 
Los  Animas  Co.  Commissioners  -». 

Bond,  235. 
Lott  V.  Hubbard,  144. 
Louis  Per.  Ins.  Co.  v.  Cohen,  361. 
Louisville  R.  R.  v.  Letson,  600. 
Louisville,  &c.  R.  R.  Co.  «.  Nichol- 
son, 394. 
Lounsbury  «.  Purdy,  524. 
Love  V.  Fairfield,  118. 
V.  Harper,  494. 
V.  Voorhies, 

20,  403,  405,  436,  507. 
V.  Young,  95. 
Lovejoy  v.  Albree,  227,  345. 

V.  Hutchins,  177,  262, 

264,  280,  281,  314,  322. 
V.  Lee,  221. 
v.  Lunt,  275. 
Lovelady  «.  Harkins,  137,  141,  263. 
Lovell  V.  Sabin,  281. 
Loveridge  v.  Plaistow,  179. 
Lovett  V.  Matthews,  17. 
Lovier  v.  Gilpin,  144,  426,  427. 
Lowe  V.  Derrick,  127,  421. 
Lowenstine  v.  Gillispie,  274. 
Lowenstein  v.  Monroe,  22,  442,  450. 
Lowry  v.  Clements,  514. 

V.  Howard,  510,  513. 


Lowry  v.  McGee,  405,  510,  511,  513. 

V.  Stowe,  118,  127,  427,  42S. 

«.  Walker,  281. 
Loyless  v.  Hodges,  593. 
Lucas  V.  Canipl)el],  223,  385. 

«.  Goodwin,  252,  253. 
Luce  V.  Hoisington,  185,  187. 
Lucky  V.  Miller,  115. 
Ludden  v.  Leavitt,  281,  284. 
Ludlow  V.  Ramsey,  44,  80,  102,  299. 
Lundie  v.  Bradford,  195,  203. 
Lupton  V.  Cutter,  168. 
Lush  V.  Galloway,  342. 
Luther  t'.  Borden,   326;    Lufes  w.  Per- 
Luttin  V.  Benin,  179.  [km*,,  396. 

Lutz  V.  Kelley,  513. 
Lyford  v.  Demerritt,  563. 

v.  Tyrrel,  179. 
Lyle  V.  Barker,  159,  212. 
V.  Foreman,  39,  45. 
Lyman  v.  Lyman,  289. 

V.  Wood,  218. 
Lynch  v.  Hoffman,  102. 

•».  Mechanics'  Bank,  545. 
Lynd  v.  Pickett,  145,  185,  187. 
Lyude  v.  Watson,  36ij. 
Lyon  V.  Blakesly,  87,  89. 

V.  Fairfield  County,  234 

v.  Rood,  177. 

V.  Sautbrd,  171. 

M. 

McAllister  v.  Brooks,  562,  565. 

V.  Pa.  Ins.  Co.,  247. 
McAlpine  «  Sweetzer,  560. 

V.  Woodruff,  453. 
McBee  v.  The  State,  264. 
McBride  v.  Floyd,  413,  478. 

V.  Ham,  21,  530,  583. 
jMcBurnie  v.  Overstreet,  187. 
INIcCandish  v.  Hopkins,  119. 
McCarthy  v.  Goold,  168. 

V.  Marsh,  16. 
McCartney  v.  Branch  Bank,  103. 
IMcCarty  v.  McPhersoii,  214,  387. 
jMcCaulley  v.  Shute,  58. 
McClellan  v.  Lipscomb,  287. 

v.  Young,  237. 


CASES    CITED. 


XXXIX 


McClosky  V.  Wiugfield,  401. 
McCobb  v.  Tyler,  4!t2,  597. 
JMcCoid  V.  Beatty,  213. 
McCollem  v.  White,  38,  44,  80, 

90,  509,  510,  513. 
McCollough  V.  Grishhobber,  455. 
Mc;Comb  V.  Reed,  281. 
McCombs  v.  Allen,  13,  20,  102,  407.  ' 
McCook  V.  Willis,  118,  421. 
]M  cCormac  v.  Hancock,  201. 
McConn  v.  New  York,  131. 
McCraw  v.  Welch,  100. 
McCreary  v.  Topper,  223. 
McCullough  V.  Carragan,  204. 
McCuUoch  V.  Foster,  77,  92. 
McDaniel  v.  Gardner,  22,  27,  444,  445. 

■y.  Sappington,  116. 
McDonald  v.  Badger,  524. 

V.  Fist,  421. 

V.  Forsyth,  G3. 

V.  Gillet,  201,  244. 

V.  Siiucox,  522,  564. 

V.  Vinette,  355. 
McDougall  V.  Board,  etc.,  237. 
McDougal  V.  Hennepin  Co.,  233. 
McEachin  v.  Reid,  527. 
McElhauey  v.  Gillelaud,  552. 
McElmoyle  v.  Cohen,  336,  338,  339. 
McFarlaud  v.  Farmer,  100. 
McFerran  v.  Wherry,  419. 
McGarran  v.  Haupt,  495. 
McGary  v.  Hastings,  453. 
McGehee  v.  Walke,  202. 
McGiuty  •«.  Flannagan,  59. 
McGoon  V.  Scales,  532. 
McGoren  «.  Avery,  543. 
McGovern  v.  Haupt,  49d. 
McGown  V.  Sprague,  77. 
McGuire  v.  Pitts,  213. 
McHaney  v.  Cawthorn,  93,  155. 
Mcllvaine  v.  Lancaster,  196,  200. 
Mclntyre  v.  Wliite,  118. 
McKay  v.  Harrower,  281. 
McKean  v.  Turner,  202. 
McKee  v.  Hicks,  398. 
McKeuzie  v.  Bentley,  46. 

V.  Buchan,  421. 

V.  Noble,  222. 

V.  Ramsay,  331. 
McKinney  v.  Farmers"  Bank,  57. 


McKiernan  v.  Massingill,  95. 
McKiusey  v.  Anderson,  426. 
McKinney  v.  Baker,  505. 

V.  Collins,  8,  312,  322. 

V.  Purcell,  161. 
McKittrick  v.  Clemens,  3(j4. 
McKnight  v.  United  States,  539,  543. 
McLaiu  V.  Simington,  123. 
McLaughlin's  Admr.  v.  Daniel,  538. 
McLaughlin  v.  Swann,  199. 
McLellan  v.  Young,  236. 
JMcLoud  V.  Selby,  234. 
McMechan  v.  Griffing  et  al., 

174,  501,  509,  524. 
McMeekin  v.  Johnson,  259. 
McMillan  v.  Dana,  409,  437. 

«.  Richards,  206. 
McMillen  v.  Lockard,  164. 
McMinn  v.  Hall,  213. 
JMcNamara  v.  Ellis,  78,  419. 
McNeal  v.  Roach,  374,  375. 
McNeilage  v.  Halloway,  169. 
McPhail  V.  Gerry,  499. 
V.  Hyatt,  561. 
McPherson  v.  fenowden,  27,  222. 
McQueen  v.  Middleton  Man.  Co.,246. 
McQuiddy  v.  Ware,  538. 
McRae  v.  Austin,  403,  405. 

v.  Brown,  451,  453,  521. 
V.  McLean,  397. 
McReady  v.  Rogers,  449. 
McReynolds  v.  Neal,  77,  425. 
Mack  V.  McDaniel,  55,  56. 
Mackalley's  Case,  138. 
Mackubin  v.  Smith,  69. 
Macomber  v.  Doaue,  362. 

V.  Parker,  162. 

V.  Wright,  205. 
Maduel  v.  Mous-eaux,  201,  203. 
Magee  v.  Beirne,  17. 
V.  Callan,  404. 
V.  Carpenter,  499. 
Magoffin  V.  Mandeville,  275. 
Magoon  v.  Gillett,  105,  425. 
Magrath  v.  Hardy,  133. 
Mahanny  v.  Rephart,  373. 
Maher  v.  Brown,  210. 
Mahon  v.  Boardman,  103. 
Main  v.  Bell,  109,  145,  468 


xl 


CASES    CITED, 


Maine  Ins.  Co.  r.. Weeks,  1G8, 169,  202. 
3Iairett  v.  :Mariner,  80,  101. 
Malley  v.  Allnian,  314. 
!Malone  v.  Lindley,  36. 
Malsom  v.  Spoor,  179,  288. 
Malliugly  v.  Grimes,  201. 
Mamlock  v.  White,  144. 
Manchester  v.  McKee,  470. 
Mandel  v.  McClure,  481. 
Maudell  V.  Peet,  43,  49,  86,  91,  96, 

121,  428. 
Mauice  v.  Gould,  389. 
Manley  v.  Headley,  77,  92. 
Mann  v.  Brewer,  410. 

V.  Buford,  218,  228. 
V.  Exrs.  of  Mann,  168. 
Mansfield  v.  Rutland  Manf.  Co.,  213. 
Mansard  v.  Daley,  211,  213. 
Mansur  v.  Coffin,  428. 
Manton  v.  Poole,  94. 
Mantz  0.  Headley.  78,  82.  92,  119.  421, 
Manuf.  Co.  v.  Taylor,  2o0.     [427,  4oO. 
Manuf.  Bank  «.  Osgood,  367. 
Maples  V.  Tunis,  77. 
Marion  v.  Faxon,  157. 
Markham  v.  Gehan,  20.5. 
Marks  v.  Reinberg,  358. 
Marnine  v.  Murphy,  117,  421. 
Marqueze  v.  Le  Blauce,  527. 
V.  Southeimer, 

61,  62,  188,  449,  565. 
Marsh  v.  Backus,  145, 184. 
V.  Davis,  367,  564. 
V.  Fulton,  539,  548. 
V.  Pier,  402,  404. 
V.  Steele,  114,  832. 
V.  Williams,  71. 
Marshall  v.  Alley,  87,  420. 

V.  Hosmer,  150,  566. 
V.  White,  63. 
Marston  v.  Baldwin,  263. 
V.  Carr,  168. 
V.  Dewberry,  535. 
Martin  V.  Bagley,  154. 
v.  Bailey,  553. 
v.  Branch  Bank,  35. 
V.  Dortch,  119. 
V.  Dryden,  815,  320, 

331,  330,  524,  568. 


Martin  v.  Foreman,  843,  595. 
V.  ]\IcCi)rmick,5;]8. 
V.  ^IcKiiiney,  331. 
V.  Thierry,  389,  391. 
V.  Tliompson,  117,  421. 
Martz  V.  D.  &  F.  M.  Ins.  Co.,  366. 

V.  Detroit  Ins.  Co.,  203. 
Maj-vel  V.  Houston,  223,  2-26. 
Marvin  v.  Hawley,  220,  598. 
Marx  V.  Abraham, 

27,  75,  78,  105,  106,  821, 435. 
Maryland  v.  Bait.  &  O.  R.  R.,  237. 
Mass.  Nat.  Bank  v.  Bullock,  313,  315. 
Mason  v.  Ambler,  36;>. 

V.  Anderson,  253,  253,  361,  365. 
V.  Messenger,  330. 
V.  Stewart,  120. 
V.  S utile,  549. 
Massey  v.  Scott,  9,  312,  320,  332,  507. 

V.  Walker,  434. 
Masters  ®.  Turner,  519. 
Matheney  v.  Earl,  517. 
Matheny  v.  Galloway,  361. 

V.  Hughes,  171. 
Mathias  v.  Yetts,  541. 
Matter  of  Bliss,  90,  93,  108. 
Brown,  90. 
Chipman,  48. 
ClarK,  371,  374,  333. 
Faulkner,  8,  90,  93,  409. 
Fitch,  90,  93. 
Fitzgerald,  38,  48. 
Marty,  413. 
Schroeder,  43,  50. 
Warner,  43,  51. 
Wrigley,  39,  40. 
Matthews  v.  Ausley,  139. 
■V.  Dare,  80. 
V.  Deusmore, 

78,  88,  89,  146. 
V.  Sands,  345. 
V.  Smith,  343. 
Mattingly  v.  Boyd,  393,  549,  595. 

V.  Grimes,  196. 
Maude  v.  Rhodes,  305,  333,  338. 
Maulsby  v.  Farr,  352,  253. 
Maupin  v.  Va.  Lead  JMining  Co.,  507. 
iMauryw.  Roberts,  481. 
Mavity  v.  Eastbridge,  560. 


CASES    CITED, 


xli 


May  V.  Bakfr,  27. 

V.  Courtney,  415. 
V.  FeiTill,  142. 
MaybeiTv  v.  Steagall,  415,  483. 
Mayes  v.  Phillips,  168. 
Mayer  v.  Chattahoochie  Nat.  Bank, 

213. 
V.  Liverpool  Ins.  Co.,  246. 
Mayfield  v.  Bennett,  9,  390. 
Mayor  v.  Duunavant,  453. 
Mayor  of  New  York  v.  Sibber  us,  552. 
Mayor,  etc.  of  New  York  v.  Genet, 

94. 
_  Mayor,  etc.  v.  Hortou,  288. 
Maxwell  v.  McBrayer,  63. 

V.  Stewart,  13,  312. 
Meacham  v.  Corbilt,  203. 

V.  McCorbitt,  493. 
Mead  v.  Bunn,  541. 
Meade  v.  Smith,  145,  185. 
Meadowcroft  v.  Agnew,  196,  199. 
Mean  v.  N.  Y.,  Housatonic  &  North- 
ern R.  R  Co.,  212,  495. 
Means  v.  Brickell,  541. 
Meany  v.  Head,  263. 
Mears  v.  Wiuslow,  595. 
Mechanic's  &  Trader's  Bank  ■». 

Hodge,  222. 
Meek  v.  Fox,  49. 
Megee  v.  Beirne,  318. 
Meggs  y.  Shaffer,  427. 
Meiuhard  v.  Lillienthal,  429,  468. 
Meints  v.  East  St.  Louis  Rail  Mill 

Co.,  250. 
Meldrum  v.  Snow,  160. 
Melton  V.  Troutman,  456. 
Melville  v.  Brown,  158,  187,  525. 
Memphis  v.  Laski,  237. 
Meuderson  v.  Specker,  181. 
Mendes  v.  Freiters, 

75,  89,  414,  425,  477. 
Menley  v.  Zeigler,  172,  251,  253,  256. 
Menkel  v.  Gumbel,  484. 
Mentz  V.  Hamman,  264. 
Merced  Bank  v.  Morton,  80,  323. 
[Merchants'  Bank  of  Baltimore  v. 

Campbell,  542. 
Merchant  v.  Preston,  59. 
Meriam  v.  Rundlett,  562. 


Merrick  v.  Hutt,  582. 

V.  Van  Sanlvoord,  246. 
Merrill  v.  Campbell, 

222,  234,  235,  237. 
«.  Law,  109. 
'    V.  Montgomery,  77. 

V.  President,  &c.  of  Kalama- 
zoo, 545. 
Merritt  v.  Miller,  265. 
]\[ersereau  v.  Norton,  156. 
IMerwin  v.  City  of  Chicago,  237. 
Meshew  v.  Gould,  284. 
Messenger  v.  Klinter,  315. 
Messner  v.  Hutchius,  78,  92,  120. 
V.  Lewis, 

120,  122,  178,  417,  434. 
V.  Woodman,  162. 
Metcalf  V.  Clark,  181. 
V.  Steele,  514 
V.  Young,  450. 
Metrovitch  v.  Jovovich,  401. 
Metts  V.  Ins.  Co.,  21,  27,  323,  477, 500 
Meuse  v.  Osbern,  418. 
Meyer  v.  Deffarge,  381. 
Meyers  v.  Smith,  372. 
«.  Ulrich,  561. 
Michels  v.  Stork,  389. 
Micliew  V.  McCoy,  396. 
Mich.  Cent.  R.  R.  v.  Chicago,  &c.  R. 
R.  Co.,  243. 
Micky  V.  Stratton,  317. 
Middlebrook  y.  Ames,  50. 
Mildmay  v.  Smith,  280. 
Millar  v.  Babcock,  275,  321,  331,  833. 
Millaudon  v.  Foucher,  92. 
Milleken  v.  Dart,  54,  503. 
Miller  «.  All,  81. 

V.  Baker,  145,  263. 

V.  Bowles,  407,  505. 

V.  Brinkerhoff,  108. 

«.  Bryan,  495. 

7).  Chandler,  84,  433. 

V.  C.  M.  &  St.  Paul  Ry.  Co., 

81,  96 
v.  Dungan,  8,  10,  312,  322,  385 
V.  Ewing,  19. 

v.  Fay,  i:!6, 173,  252,  263,  263. 
«.  Garrett,  453. 
V.  Haudy,330,  333. 


xlii 


CASES    CITED. 


Miller  V.  Hooe,  227. 

V.  McLain,  563. 

V.  McMillan,  252. 

V.  Kichardsou,  190,218. 

V.  Sharp,  305,  o23,  3;J8. 

V.  State,  391. 

V.  Whitehead,  391,  530. 
Millison  v.  Fisk,  219,  222,  230,  237. 
Mills  V.  Brown,  49,  108,  156,  170. 

V.  Martin,  330. 
Miltenberger  v.  Lloyd,  410. 
Mims  V.  Parker,  202. 
Minard  v.  Lawler,  597. 
Mineral  Point  R.  R.  Co.  v.  Barron, 

204. 
Mineral  Point  R  R.  Co.  v.  Keep,  35. 
Minniece  v.  Jeter,  84. 
Minza  v.  Zollicoffer,  63. 
Miss.  &c.  R.  R.  Co.  V.  U.  S.  Express 
Co.,  244,  527. 
Mizell  V.  McDonald,  512. 
Mobile  «.  Rowland,  237. 
Mobley  v.  Loubat,  204. 
Mock  V.  King,  223. 
Mocklee  v.  Gardner,  538. 
Molm  V.  Barton,  283. 
Molton  V.  Ereott,  484. 
Monlon  v.  Trenton  Ins.  Co.,  246. 
Monroe  v.  Cutter,  402,  405. 
Montague  v.  Gaddis,  56. 
Montgomery  Gas  Light  Co.  v.,  Mer- 
rick, 361,  521. 
Montgomery  v.  Merrill,  261. 

V.  Tilley,  55. 
Montpelier,  &c.  R.  R.  Co.  v.  CofFrin, 
27,  314,  322. 
Moody  V.  Alter,  206. 

V.  Levy,  80,  419. 
Mooney  v.  Union  Pac.  R.  R.  Co.,  360. 
Moor  V.  Towle,  197. 
Moore  v.  Allain,  472,  473. 

V.  Angiolette,  432. 

V.  Chicago,  &c.  R.  R  Co.,  204. 

V.  Coates,  251. 

V.  Dickerson,  389. 

«.  Fedawa,  21,  530. 

V.  Gennett,  248. 

V.  Graves,  101,  219. 

V.  Hawkins,  427. 


Moore  v.  ITaraiUon,  27. 

V.  Holt,  21,  38,  45,  342, 489, 593. 
V.  Kidder, 

172,  251,  255,  250,  593 
T.  Jackson,  509,  510,  513. 
V.  IVIayor  of  Chattanooga,  237 
V.  Murdock,  159. 
V.  Pillow,  108. 
V.  Reaves,  502. 
1).  Sample,  525. 
V.  Sheppard,  71. 
V.  Stainton,  344. 
V.  Stanley,  274. 
«.  Westervelt,  281. 
V.  Whittenburg,  219. 
V.  Willenberg,  22,  444. 
Moresi  v.  Swift,  21,  27,  283, 

289,  322,  448,  477,  483. 
Morey  v.  Sheltus,  202. 
Morgan  v.  Avery,  42,  51, 412,  417, 431. 
V.  Campbell,  407,  505. 
V.  Curtenius,  326. 
V.  House,  77. 
V.  Idle,  160. 
1).  Johnson,  258. 
V.  Morgan,  118. 
V.  Richards,  139. 
V.  Nunes,  38,  40,  44. 
«.  Woods,  274. 
Morrill  v.  Keyes,  185,  188. 
Morris  v.  Hogle, 

275,  321,  330,  331,  333. 
V.  Price,  451. 
V.  Union  Pacific  R.  R.  Co., 

305,  322. 
Morrison   v.  Alphin,  403. 
«.  Blodgett,  525. 
«.  Crawford,  445,  456. 
V.  Lovejoy,  90,  93,  135. 
V.  Ream,  109. 
Morse  v.  Holt,  194. 

V.  Hurd,  145,  159,  186,  263. 
v.  Goold,  330. 
V.  Marshall,  375. 
Morton  v.  Robards,  495. 
Moses  V.  Arnold.  414. 

V.  Waterbury  Button  Co.,  399. 
Mosher  v.  Banking  House,  267. 
Mosher  v.  Bartholow,  9. 


CASES    CITED. 


xliii 


Mozarietta  v.  Saenz,  274. 

Miuth  V.  Schardin,  201,  240,  243,  244. 

Mullen  V.  Maguire,  380. 

Mulford  V.  Stalzenback,  329. 

Mulloy  V.  White,  404. 

Muncy  v.  Joest,  5G0. 

Munroe  v.  Cocke,  88. 

V.  Frosh,  40. 

V.  Luke,  174. 
Murdock  v.  Daniel,  514. 
Murdougli  V.  McPlierrin,  141,  425. 
Murphy  v.  Adams,  23,  66. 

V.  Ames,  389. 

V.  Baldwin,  36,  37,  39,  40. 

V.  Caldwell,  375. 

V.  Purdy,  93. 
Murray  v.  Cone,  82,  120. 

V.  Elrige,  491. 

V.  Hankin,  96. 

V.  Munford,  451,  453,  469. 

V.  Vanderbilt,  396. 
Murrell  v.  Johnson,  222. 
Murtagh  v.  Connor,  289. 
Musgrave  v.  Brady,  27,  423. 
Muskingum  Valley  Turnpike  v. 

Ward,  274. 
Mutherrin  v.  Hill,  95. 
Myatt  V.  Lockhart,  213. 
]Myer  v.  Liverpool,  »fec.  Ins.  Co.,  216. 
Myers  v.  Farrell,  9,  51,  53,  312,  323. 
V.'  Lewis,  82,  119,  421. 
1}.  Mott,  165. 
V.  Myers,  181. 
V.  Perry,  416,  436. 
V.  Smith,  8,  20,  27,  205, 

312,  322,  391,  402,  406. 

N. 

Napper  v.  Noland,  92. 
Narcross  v.  Widgery,  500,  501. 
Narraguagus  v.  Weutworth,  120. 
Nash  V.  Farrington,  166. 
Nason  v.  Esteu,  181. 
Nashville  v.  Potomac  Ins.  Co., 

306,  372. 
Nashville  Bank  v.  Ragsdale,  165. 
Nat.  Bank  v.  Huntington,  248. 
National  Bank  v.  Teal,  75. 

V.  Titsworth,  354. 


Nat.  Bank  of  Commerce  v. 

Titsworth,  265. 
National  Bank  of  Missouri  v. 

Stanley,  195. 
Nat.  S.  L.  Bank  v.  Mech.  Nat.  Bank, 

144. 
-  Nations  v.  .Johnson,  272,  315. 
Naylor  v.  French,  38,  43,  58. 
Nazoo  V.  Cragiu,  312. 
Neal  V.  Bookout,  416. 
V.  Gordon,  94,  323. 
V.  Newland,  481. 
Neale  v.  Ultze,  486,  493. 
Neally  v.  Judkins,  137,  423. 
Neill  V.  Glass,  159. 
Nelson  v.  Connor,  222. 

V.  Cook,  184,  204. 
V.  Hyde,  412,  410. 
v.  Munch, 

88,  97,  98,  102,  413,  430. 
V.  Simpson,  177,  314,321. 
Nesbitt  V.  Ware,  202. 
Neves  t.  Scott,  326. 
Neuer  v.  O'Fallon,  196,  222,  238. 
Newcomb  v.  Presbrey,  543. 
Newdigate  v.  Davy,  543. 
Newell  V.  Blair,  211,  358,  374. 

V.  Great  Western  Ry.  Co., 

246. 
New  England  Ins.  Co.  v.  Chandler, 

199. 
Newhall  v.  Buckingham,  525. 
N.  H.  Ins.  Co.  v.  Piatt,  108,  109. 
New  Haven  Saw  Mill  Co.  v.  Fowler, 

222. 
Newman  v.  Kane,  281. 

V.  Krain,  58,  321. 
V.  Manning,  517. 
N.  A.  R.  R.  Co.  V.  Combs,  549. 
New  Orleans  &c.  v.  Beard,  480. 
V.  Garland,  27,  92. 
&c.  V.  Hemphill, 

272,  315. 

V.  Morris,  483. 

Canal  &  Banking  Co. 

V.  Comly,  43,  51. 

N.  O.  M.  &  C.  R.  R.  Co.  V.  Long,  350. 

Newton  v.  Adams,  283. 

N.  Y.  &  Erie  Bank  v.  Codd,  428,  431. 


xliv 


CASES    CITED. 


Nicholls  V.  Lawrence,  82,  260. 

V.  Scofield,  217. 
Nichols  V.  Goodheart,  200,  201,  244. 
V.  Levy,  326. 

«.  Patten,  177,  251,  314,  322. 
<v.  Valentine,  281. 
Nicholson  v.  Leavitt,  59. 
Nickerson  v.  Chase,  201,  224. 
Nixon  &  Chatfield  v.  Nash  &  Atkin- 
son, 205. 
Noble  V.  Boui-ke,  387. 

V.  Thompson  Oil  Co.,  562. 
Nockles  V.  Eggspieler,  445,  451. 
Nolan  V.  Royston,  105,  106. 
Nolle  V.  Thompson,  22,  444. 
Noonaa  v.  Pomeroy,  109. 
Nordhaus  v.  Peterson  Brothers, 

113,  450,  455. 
Norman  v.  Jackson  Circuit  Judge, 

321. 
Norris  v.  "Watson,  176. 
North  V.  Belden,  495. 

V.  McDonald,  49. 
North  Central  R.  R.  Co.  v.  Rider,  193. 
Northwestern  Ins.  Co.  v.  Atkins,  203. 
Norton  v.  Moyers,  537,  541. 
V.  Rock  Co.,  543. 
V.  Winter,  598. 
Norwell  v.  Porter,  193,  261,  267. 
Noyes  v.  Johnson,  503. 
Nutter  V.  Connett,  50, 55,  493, 582.  595. 
Nutter  V.  Framingham  &  Lowell 

R.  R.  Co.  &  Trustee,  307. 
Nye  t'.  Liscomb,  227. 

V.  VanHusan,  59. 
Nudd  V.  Burrows,  328. 
0. 

Ober  V.  Mathews,  364. 
O'Brien  v.  Collins,  238,  492. 

V.  Daniel,  87,  331,  333. 

V.  Liddell,  599. 
O'Connor  v.  Blake,  581. 
Odiorne  v.  Colley,  161,  219,  286,  288. 
O'Donald  v.  Constant,  163. 
Odom  V.  Shackelford,  261. 
Oelrichs  v.  Spain,  453. 
Oete.SB.  Aehle,  323,  318. 
Ogden  V.  Walters,  69. 


OTarrell  v.  Heard,  78,  145,  423,  544. 
Oflutt  V.  Edwards,  43,  432,  449. 
O'Grady  v.  Julian,  456. 
Ohio  &  Miss.  R.  R.  Co.,  v.  Alvey, 

560,  562. 
Ohors  V.  Hill,  171. 
Ohio,  &c.  R.  R.  Co.  v.  Shullz,  329. 
Olcott  V.  Robinson,  274. 
Oldham  v.  Ledbetter,  357. 
V.  Scrivener,  219. 
Oliphant  v.  Mansfield,  453, 
Oliver  v.  Smith,  222. 

V.  C.  &  A.  R.  R.  Co., 

239,  359,  394. 

V.  Gwin,  438. 

«.  Lake,  IGO. 

V.  Town,  86,  101. 

V.  Wilson,  43,  127,  421. 
Olmstead  v.  Rivers,  75,  114,  412. 
Onley  v.  Shepherd,  259. 
O'Neal  V.  Owens,  422. 
Oppenheim  v.  Pittsburg,  Cin.  &c. 

R.  R.  Co.,  522,  560. 
O'Reilly  v.  Freel,  432,  433. 
Ordiorne  v.  Colley,  281. 
Ordway  v.  Remington,  203. 
Orth  V.  Jennings,  524. 
Osborne  v.  Robbins,  413,  417. 

V.  Schitfer,  420. 
Osgood  V.  Blackmore,  330. 
V.  Breed,  17. 
V.  Holyoke,  137,  423. 
Our  House  No.  2  v.  State,  560. 
Overton  v.  Hill,  220. 
Owens  V.  Starr,  144. 
Owen  V.  Jordan,  331. 
Oysted  v.  Shed,  256. 


Pace  V.  Lee,  477,  483. 

V.  Smith,  219. 
Packard  v.  Wood,  163. 
Padden  v.  Moore,  342,  344. 
Paddock  v.  Kittredge,  538,  541. 

V.  Matthews,  416. 
Padfield  v.  Brine,  168. 
Page  V.  Ford,  119,  120. 

V.  Generes,  251,  258. 


CASES   CITED. 


xlv 


Page  V.  Tbrall,  285. 
Paine  v.  Farr,  201. 
V.  Mooreland, 

270,  271,  298,  323,  325. 
V.  Tilden,  423. 
Paibles  v.  Eoux,  4vG. 
Palmer  v.  Ballard,  361. 

v.  Oakley,  27G,  315. 
Pancake  v.  Harris,  78. 
Pancoast  v.  Washincrton,  8,  312. 
Pangburn  v.  Patridne,  203. 
Paradise  v.  Farmera'  and  Mercbants' 
bank,  161,  181. 
park  V.  Harmon,  4C3. 
V.  Mattbews,  199. 
V.  Trustees  of  Williams,  63. 
Parker  v.  Brady,  13,  416,  469. 
V.  Danfortb,  203. 
V.  Donnally,  2'i;3. 
V.  Farr,  402,  533. 
v.  Kinsman,  295,  595. 
V.  Parker,  593. 
V.  Pistor,  525. 
V.  Scott,  85,  91. 
V.  Walrod,  77,  01. 
Parkbam  v.  Randolpb,  541. 
Parks  V.  Cusbman,  165,  224. 

V.  Sbeldon,  407. 
Parmele  ■».  Jobnsou,  86,  91. 
Parsbley  v.  Green,  165. 
Parsons  v.  Case,  428,  429. 
V.  j\IcGav(jck,  237. 
V.  Paine,  13,  274,  467. 
V.  Sprague,  416. 
V.  Stockbrid','e,  52,  100. 
V.  Wells,  472. 
Patcb  V.  Wessels, 

21,  172,  176,  177,  283. 
Patrick  v.  Solinger,  137,  423. 
Patterson  v.  Goodricb,  412,  413,  416. 
V.  Gulnare,  105,  107. 
V.  Stepbenson,  488. 
Patton  V.  Garrett,  188,  449,  452,  565. 

V.  Smith,  202. 
Paul  V.  Burton,  177. 
V.  Paul,  202,  376. 
V.  Reed,  202. 
V.  Slason,  285. 
V.  Virginia,  246. 


Paul  V.  Ward,  420. 
Pawley  v.  Gaines,  221. 
Paxton  V.  Steckel,  145,  263,  264. 
Payne  v.  Snell,  403,  437. 
Peace  v.  Jones,  203. 
Peacock  v.  Bell,  330. 
Peak  V.  Buck,  354. 
Pearce  v.  Baldridge,  256. 
V.  Bell,  75. 
V.  Sborter,  205. 
Pease  v.  Underwriters'  Union,  250. 
Peck  V.  Barnum,  200. 
V.  Fisber,  155. 
V.  Guerney,  541. 
V.  Stratton,  212,  482,  484. 
V.  Webber,  21. 
Peckbam  v.  Nortb  Parish  in  Haver- 
hill,  246. 
Peet  V.  McDaniel,  202. 
V.  Whitmore,  217. 
Peevey  v.  Cabaniss,  470. 
Peiser  v.  Cusbman,  123. 
Peltou  V.  Plainer,  265. 
Pendleton  v.  Perkins,  238. 

v.  St.  Louis,  237. 
Penballow  v.  Dwigbt,  176. 
Penman  v.  Gardner,  416. 
Penn  v.  Edwards,  460. 

V.  Pel  an,  352. 
Pennebaker  v.  Tomlinson,  380. 
Penniman  v.  Ruggles,  196,  221. 
Pennoyer  v.  Neff,  8,  104,  272, 

277,  305,  309,  317„340. 
Pa.  Steel  Co.  v.  N.  J.  Southern  R.  R. 
Co.,  321,  484. 
Pa.  Railroad  v.  Peoples,  47,  63,  244. 
Penny -y.  Little,  509,  524. 
Penton  v.  Brown,  179. 
People  V.  Baker,  312,  323. 

V.  Cameron,  9,  39,  397,  402. 
V.  Gray,  274. 
V.  Huber,  275. 
D.  Johnson,  213. 
V.  Lucas,  552. 
V.  Mayor,  etc.  237. 
V.  McClay,  37. 
«.  Schuyler,  145,  188,  552. 
V.  Wheeler,  259. 
People's  Bank  v.  Shryock,  525. 


J.lvi 


CASKS    CITED. 


Peoria  Ins.  Co.  v.  Warner,  28. 
Pepper  v.  Diinlap,  473. 
Perkins  v.  Bragg, 

lt)G,  509,  510,  513,  536. 
«.  Parker,  5G5. 
V.  Pike,  67. 
V.  Pitiiian  et  al.,  149. 
Perley  v.  Foster,  281. 
Perminter  «.  McDaniel,  898. 
Perriu  v.  Leverett,  356. 
Perrine  v.  Evans,  36,  40. 
Perry  v.  Can-,  179. 

V.  Coates,  168,  169. 
V.  Post,  400. 
V.  Thornton,  333. 
V.  Williams,  145,  159,  186. 
Peters  v.  Conway,  183. 

V.  The  AVarren  Ins.  Co.,  17. 
Petit  V.  Mercer,  449. 
I'etters  v.  McClannahan,  339. 
Pettes  V.  Spalding,  305. 
Pettibone  v.  Griswold,  495. 
Pettiugill  V.  Andr.  R.  R.  Co.,  344. 
Pettit  V.  Mercer,  113,  445, 

V.  Owen,  448. 
Petty  v.  Clark,  538. 
Pfoutz  V.  Comford,  38,  43. 
Phelps  V.  Baker,  305,  323. 
V.  Boughton,  865. 
V.  Coggeshall,  451. 
V.  Holker,  8,  312,  323,  338. 
V.  White,  541. 
V.  Young,  88,  91. 
Phillipsburg  Bank  v.  Lackawanna 

R.  R.  Co.,  35,  36,  431,  433. 
Phillips -y.  Bridge,  280,  389,  448. 
V.  Cook,  535. 
V.  Germon,  304,  367. 
V.  Hines,  30,  403. 
•p.  Stewart,  507. 
V.  Welch,  303,  332,  413. 
Philpot  V.  Newman,  136,  423. 
Phoenix  Bank  v.  RLsley,  539. 
Pickering  v.  Wendell,  196. 
Pickhardt  v.  Anthony,  80,  89. 
Picquet  v.  Swan, 

159,  212,  233,  335,  358. 
Pierce  v.  Atwood,  139. 
V.  Bell,  4.^5. 


Pierce  v.  Carleton,  161,  203, 

319,  321,  345,  861,  375. 
V.  Crompton,  415. 
v.  Hall,  500. 
V.  Jackson,  165,  400. 
V.  Myers,  433. 
V.  Shorter,  168,  170. 
V.  Smith,  27,  90,  93,  108. 
V.  Strickland, 

130,  256,  264,  280. 
Pierson  v.  Hovey,  385. 
V.  Robb,  534. 
V.  AVeller,  199. 
Pillsbury  v.  Small,  388. 
Pinson  v.  Kirsh,  448. 
Pioneer  Printing  Co.  v.  Sanborn,  375. 
P^quL't  V.  Swan,  328.     • 
Piper  V.  Piper,  303,  334,  376. 
Piscataqua  v.  Kingsbury,  536. 
Piscataqua  Bank  v.  Turuley,  63. 
Pitkins  V.  Boyd,  103. 
Pittman  v.  Searcey,  417. 
Pitts  V.  Boroughs,  43. 
Pittstown  V.  Plattsburgh,  337. 
Pixley  V.  Hoggins,  524. 

V.  Reed,  445,  456. 
Place  V.  Sweetzer,  525. 
Plant  V.  Smythe,  165,  313,  534. 
Planters'  Bank  v.  Byrne,  37,  116. 
Planters'  &  Mercbants'  Bank  v. 

Andrews,  35,  118,  137,  415,  431. 
Planters'  &  Merchants'  Bank  v. 

Leavens,  240,  245. 
Plater  v.  Hepburn,  464. 
Piatt  V.  Brown,  178. 
Plimpton  V.  Bigelow,  345,  349. 
Plummer  v.  Plummer,  548. 
V.  Rundlett,  197. 
Plumpton  V.  Cook,  433. 
Poage  V.  Poage,  93. 
Polk  V.  Wendall,  539. 
Pollard  V.  Ross,  321. 
Policy  V.  Lenox  Iron  Works,  180. 
Pollock  V.  Gantt,  450. 
Pomeroy  v.  Betts,  275. 

V.  Ricketts,  89,  394. 
V.  Stevens,  495. 
Pomroy  v.  Kingsley,  288. 
V.  Parmlee,  181. 


CASES    CITED. 


xlvii 


Pond  V.  Baker,  ?51,  253,  256,  567. 

V.  Griflin,  4!)2,  582,  597. 
Pool  V.  Symonds,  281. 
Poole  V.  Dyer,  410. 

V.  Webster,  27,  82,  83. 
Pope  V.  Cutler,  270,  315. 
V.  Hainan,  5,5. 
V.  llibernia  Ins.  Co.,  71,  357. 
V.  lluuter,  117,  421. 
Porter  v.  Byrne,  172,  258. 
V.  Earthman,  494. 
c.  Hildebrand,  63,  228,  243. 
V.  Miller,  142. 
V.  Millett,  524. 
9.  Partee,  4(J4. 
V.  Pico,  173,  252, 

253,  25G,  262,  416,  523. 
V.  Stephens,  367. 
Post  V.  Leet,  543. 
Post  V.  Love,  223. 
Pote  V.  Bacon,  545. 
Potomac  Steam  Boat  Co.  v.  Clyde, 

312,  320,  321,  331,  389,  39j,  392. 
Potter  V.  Cain,  203. 

V.  Sanborn,  40. 
Potter  &  Stymus  Manufac.  Co.  v. 

Taylor,  230. 
Pounds  V.  Hamner,  3(J8,  453. 
Powell  V.  Matthews,  57. 
.  V.  McKee,  181. 
V.  Sam  mens,  203. 
Powers  V.  Hurst,  92. 

V.  People,  330. 
Prathev  v.  Chase,  262. 
Pratt  V.  Wheeler,  172;  Albright,  344. 
Prentiss  v.  Bliss,  161,  219,  221,  598. 
Prescolt  V.  Heard,  495,  500. 
V.  Hull,  367,  564. 
V.  Locke,  162. 
V.  Parker,  597. 
President  of  Union  Turnpike  Co.  v. 
Jenkins,  237,  239. 
Presler  v.  Turner,  560. 
Pressnall  v.  Mabray,  202. 
Preston  v.  i'rye,  538,  541. 
Preston  v.  Yates,  150. 
Prewitt  V.  Carmichael,  63. 
Price  V.  Brady,  168. 
V.  Higgins,  527. 


Price  V.  Jackson,  518. 

V.  Merritt,  27. 

«.  Reed,  414. 

«.  Sharp,  430. 
Priest^!).  Kice,  495,  496,  501,  502. 
Prince  v.  Clark,  106,  410. 
Probst  «.  Scott,  171. 
Proctor  V.  State,  331. 
Propeller  Hilton  v.  Miller,  558. 
Proper  v.  Cobb,  158. 
Proskey  t).  West,  118,  127. 
Prout  V.  Grout,  170,  171. 
Providence  &  Stouington  S.  S.  Co.  d. 
Va.  Fire  and  Marine  Ins.  Co.,  171. 
Pruilt  v.  Armstrong,  203. 
Pry  «.  Hannibal  &  St.  Jo.  R.  R.  Co., 
389,  391. 
Puff  V.  Hutcher,  521. 
Pullian  V.  Nelson,  428. 
Pulsifer  v.  Waterman,  155. 
Purcell  V.  Steele,  398. 
Purdy  V.  Irwin,  524. 
Putnam  v.  Hall,  140. 
Pyle  ®.  Cravens,  274. 

Q. 

Quarles  v.  Robinson,  87,  108. 
Quigg  V.  Kittredge,  218. 
Quine  v.  Mayers,  436,  438. 
Quinn  v.  Halbort,  499. 
Quinlaud  v.  Danford,  418. 


R. 


Race  V.  Maloney,  269,  323. 
Raefle  «.  Moore,  224,  225. 
Raignel  v.  McConnell,  168. 
R.  R.  Co.  V.  Coffriu,  288. 
Railroad  Co.  v  Whittou,  600. 
Railroad  v.  Peoples,  228,  372,  513. 
Railroad  v.  Todd,  355,  357,  464,  517. 
Rancher  v.  McElhenny,  434. 
Rand  v.  White  Mountain  R.  R.,  203. 
Randall  v.  W\ay,  367. 
Randolph  v.  Little,  514,  528. 
Rankin  v.  Dulaney,  251. 
Ranlett  v.  Blodgett,  148,  150,  566. 
V.  Constance,  449. 


xlviii 


CASES    CITED. 


Ranning  v.  Reeves,  117,  423. 
Ransom  v.  Halcott,  178,  5G6. 
V.  Hays,  202. 
V.  AVilliams,  330. 
Rapp  V.  Kyle,  209. 
Rasch  «.  Moore,  9G. 
Rath  bone  v.  Ship  London,  403. 
Ravenga  v.  Mackintosh,  455. 
Raveutas  v.  Green,  176. 
Raver  v.  "Webster,  63,  455. 
Rawlins  v.  Nickham,  541. 
Ray  V.  Underwood,  227. 
Raymond  v.  Green,  22,  123,  441,  451. 

v.  Rockland  Co.,  250. 
Rayne  v.  Taylor,.  36,  40. 
Raynes  v.  Lowell,  etc.  Society,  199. 
Raynor  ®.  Pacific  National  Bank,  143. 
Re  Flandrow,  223. 
Re  Miicauly,  391. 
Read  v.  Jeffries,  22,  441. 
V.  Sprague,  161,  375. 
V.  Ware,  417. 
Reams  v.  McNail,  144. 
Reaugh  v.  McConnel,  393. 
Redd  v.  Burns,  213. 
Reddick  v.  Smith,  161,  219.  221. 
Reddy  v.  Bego,  45. 
Redgrave  v.  Hurd,  541. 
Reding  v.  Ridge,  92. 
Redingtoa  v.  Frye,  67. 
Redman  v.  AVhite,  214,  387. 
Redus  V.  Wofford,  84,  262,  586. 
Redwitz  v.  Waggarnan,  484. 
Redwood  v.  Consequa,  47,  78. 
Reed  v.  Beach,  G3. 

V.  Ennis,  426,  480. 
V.  Howard,  158,  525. 
«.  Ketch,  38. 
V.  Ownby,  165. 
V.  Perkins,  259. 
'D.  Whitton,  560. 
Reese  River  S.  M.  Co.  v.  Smith,  541. 
Reeves  v.  Comly,  43,  51. 
Regan  v.  Pac.  R.  R.  Co.,  367. 
Regiua  v.  Hartington,  16. 

V.  Wye,  16. 
Reid  V.  Tucker,  151. 
Reidhar  v.  Berger,  449. 
Reilsuyder  v.  Lee,  221. 


Reiss  V.  Brady,  418. 
Remington  v.  Cady,  158. 
Renueker  v.  Davis,  342,  593. 
Repine  v.  McPherson, 

252,  253,  265,  305,  323 
Repley  v.  Severance,  197. 
Reyburn  v.  Brackelt,  80. 
Reyuell  v.  Sprye,  541. 
Reynolds  v.  Damrell,  423. 
V.  Horn,  423. 
V.  Jordan,  403,  437,  438. 
V.  Simpkins,  416. 
Rhine  v.  Danville,  356. 
Rhoades  v.  Woods,  281. 
Rhodes  v.  Smith,  399. 
Rice  V.  Dwight  Man.  Co.,  538. 
V.  Jerenson,  109. 
■».  McMartin,  469. 
V.  Thornton,  417. 
V.  Wilkins,  281. 
Richards  v.  Allen,  199. 
«.  Craig,  401. 
V.  Daggett,  145,  185,  187. 
V.  Donaughey,  80. 
V.  Griggs,  224 
v.  Stephenson,  367. 
Richardson  v.  Gurne'-,  218. 

V.  Hall,  145,  184,  482. 
f.  Hickman,  565. 
V.  Lacey,  356,   527;  Whi- 
Richmond  v.  Dreyfous,  328.  [ting,  196. 
Richter  v.  Wise,  89. 
Rick  V.  Waters,  203. 
Rickert  v.  Snyder,  453. 
Ricketts  v.  Henderson,  335. 
Riddle  v.  Black,  418 

V.  Varnum,  163. 
Ridgeney  v.  Coles,  276,  315. 
Ridgeway  v.  Farr,  252,  253. 
V.  Smith,  56,  433. 
Ridley  v.  Ridley,  315,  320,  323. 
Ridlon  V.  Cressey,  527. 
Riley  v.  Hirst,  218,  223. 

V.  Nichols,  78. 
Rinchey  v.  Stryker,  145. 
Rindge  v.  Green,  228. 
Ripley  v.  Gear,  410. 
Rippen  v.  Schoen,  200,  376. 
Rischert  v.  Kuuz,  204. 


CASES    CITED. 


xlix 


Risley  v.  Brown,  407,  505. 

e.  Phoenix  Bank,  540. 
V.  Welles,  197. 
Riswick  V.  Davis,  39,  40. 
Rittenhouse  v.  Harman,  94. 
Ritter  v.  Scannell,  259. 
Rivaid  V.  Gardner,  274. 
Rives  V.  Wibborne,  397. 
Rix®.  Elliott  205. 
Rix  V.  Silknitter, 

159,  160,  176,  177,  180,  187. 
R.  L.  &  M.  Works  v.  Kelley,  154. 
Roach  V.  Brannon,  59,  60,  113,  455. 

V.  Chapman,  559. 
Robbins  v.  Alley,  40. 

V.  Coopei',  156. 
Roberts  r.  Barry,  514. 
"0.  Carpenter, 

284,  285,  814,  322. 
■0.  Drinkard,  203. 
«.  Dunn, 

161,  219,  314,  321,  397,  404. 
Robertson  v.  Baker,  198. 
V.  Beall,  222. 
V.  Forest,  530,  582,  597. 
V.  Kinkhead,  265. 
v.  Lemon,  453. 
v.  Roberts,  354. 
Robinson  v.  Burton,  87,  105. 
V.  Campbell  326. 
«.  Ensign,  161,  219. 
«.  Mansfield,  145,  159, 

160,  185,  186,  286. 
V.  National  Bank  of  New- 
berne,  143,  144,  312,  322. 
Roche  V.  R.  I.  Ins.  Assoc,  241. 
Rochefeller  ».  Roysradt,  421. 
Rockwood  V.  Varnum,  292,  494. 
Rodega  v.  Perkerson, 

159,  184,  186,  188,  323. 
Rodman  v.  Musselman,  230,  2-^7,  238. 
Rodolph  V.  Mayer,  389. 
Rodrigues  v.  Trevino,  212,  474,  483. 
Roelfson  v.  Hatch,  89,  321,  331. 
Rogers  v.  Abbott,  497. 

V).  Bonner,  171,  256,  259. 
«.  Cooper,  105,  100. 
v.  Dill,  330. 
V.  Ellis,  99. 


Rogers  v.  Fairfield,  177. 
®.  Gilmore,  177. 
Rollins  V.  Clement,  276. 
Rollo  V.  Andes  Ins.  Co.,  230. 
Romagosa  v.  Nodal,  212,  474. 
Ronaklson  v.  Hamilton,  99. 
Ronkendorf  v.  Taylor's  Lessee,  278. 
Rood  V.  Scott,  285,  286. 
Rooker  v.  Daniels,  505. 
Roosevelt  v.  Kellogg,  39. 
Root  V.  Monroe,  421. 
Rose  V.  Himely,  336. 
V.  Whaley,  423. 
Rosenberg  «.  Moore,  59. 
Rosenbury  v.  Angel,  145. 
Rosenfiekl  o.  Howard,  57. 
Rosenthal  v.  Wehre,  62. 
Ross  V.  Allen,  236. 
v.  Clark, 

43,  51,  219  222,  233,  600 
f}.  Duval,  326. 
v.  Edwards,  159. 
V.  Jenkins,  102. 
V.  Pitts,  560. 
v.  Ross,  240,  245. 
Roth  V.  Hotard,  223,  225. 
Rothermel  «.  Marr,  145,  149. 
Roulhac  V.  Rigby,  127. 
Ilourke  v.  Bullens,  163. 
Rouss  v.  Wright,  87. 
Rowan  v.  Lamb,  173,  251. 
Rowe  V.  Heath,  453. 
Rowell  r.  Klein,  264,  267. 
Rowell  «.  Powell,  165,  212. 
Rowland  v.  Coyne,  394. 

«.  Plummer,  375,  376,  484. 
,  Rowley  v.  Berrian,  9,  310, 

312,  321,  331,  396,  407. 
V.  Kemp,  471. 
«.  Rice,  283. 
Rudolph  V.  McDonald,  103,  477,  522. 
Ruff  «.  Ruff,  52L 
Rugg  V.  Minett,  162. 
Rundlett  v.  Jordan,  168,  202. 
Runlett  V.  Bell,  280. 
Runyan  v.  McClellan,  524. 

t).  Morgan,  91. 
Ruppert  V.  Haug, 

83,  86,  89,412,  415,478. 


CASES    CITED. 


Russ  V.  Butterfleld,  259. 
Russell  V.  Cliugnian,  203. 

1).  Gregory,  87,  333. 

«.  Meu  of  Devon,  234. 

V.  O'Brien,  163. 
Rutter  V.  Boyd,  374. 
Ruttie  V.  Green   Bay  &  Minn.  R.  R. 
Co.,  «a,  87,  89. 
Ryan  v.  Burkham,  207. 
Ryder  i).  Flanders,  27U,  315, 
Ryland  v.  Green,  17. 


Sabin  v.  Cooper,  205. 

Saco  V.  Hopkinton,  137,  423. 

Saddler  v.  Prairie  Lodge,  361. 

Saddlesveue  v.  Arms,  63. 

Saft'aracus  v.  Bennett,  274. 

Saftaraus  v.  Terry,  275. 

Sagely  v.  Livermore,  281. 

Sailer  v.  Ins.  C.  of  North  America,  371. 

Saddler  v.  Hudson,  o28. 

Sample  v.  Coulson,  264. 

Samuel  v.  Aguew,  209,  557. 

13.  Brite,  117. 
Sanborn  v.  Royce,  155,  568. 
Sandburg  v.  Papineau,  520. 
Sandel  v.  George,  40,  46. 
Sanders  v.  Canett,  77. 

«.  Hamilton,  264,  536. 

D.  Huglie.s,  113,  450. 
Sanderson  v.  Edwards,  177,  280,  314. 
Sands  v.  Lynliam,  538,  543. 
Sanford  v.  Boring,  177,  314,  323. 

V.  Pond,  261. 

V.  Wheeler,  495. 
Sangster  v.  Butt,  562. 
Sangster  v.  Commonwealth,' 

145,  185,  188. 
Santo  V.  State,  560.  > 

Sappington  v.  Oeschli,  165. 
Sargeant  ■».  Helmbold,  63. 
Sargent  v.  Carr,  159. 
Sarpy  v.  New  Orleans,  453. 
Saulter  v.  Butler,  422. 
Saunders  v.  Bartlelt,  525. 
Saunders  v.  Columbus  Life  Ins.  Co., 
21,  172,  173,  251,  253. 


Savage  v.  Aiken,  406. 
Savery  v.  Browning,  105. 
Sawyer  v.  Arnold,  86,  91. 
v.  Curtis,  264,  567. 
«.  Merrill,  188. 
■».  Thompson,  337. 
Sayward  v.  Drew,  203. 
Scamahorn  v.  Scott,  353. 
Scanlon  v.  O'Brien,  30,  403,  409,  437. 
Scarborough  «.  Malone,  31,  348, 

399,  509,  567,  581. 
Schacklett's  Appeal,  31. 
Schall  V.  Bly,  434. 
Schatgill  V.  Bolton,  525. 
Scheib  v.  Baldwin,  183. 
Schell  V.  Leland,  77. 
Schenck  «.  Griffin,  463. 
Schepler  v.  Gariscan,  159. 
Scherr  v.  Little,  150. 
Schindler  v.  Smith,  193. 
Schlaeter  v.  Raymond,  213. 
Schlater  v.  Broaddus,  438. 
Schlatter  v.  Hunt,  434. 
Schmidlapp  v.  Currie,  59. 
Schmidt  v.  Bickenbach,  444. 
V.  Brown,  4U0. 
«.  Col  ley,  477. 
Schneider  v.  McFarland,  315. 
Schnell  v.  Chicago,  375,  321,  331,  333. 
Schoolcraft  v.  Thompson,  548. 
School  Dist.  V.  Gage,  235,  236. 
School  District  v.  Taylor,  503. 
Schooner  Bolina  v.  Cargo,  373,  315. 
Schoppenhast  v.  Ballman, 

413,  503,  560,  565. 
Schulenburg  v.  Farwell,  71. 
Schuyler  v.  Sylvester,  4-0. 
Schwab  V.  Mabley,  393. 
Sch  winger  v.  Hick  ok,  538. 
Scofield  V.  Bell,  160. 

V.  Bradlee,  294. 
Scorpion  S.  M.  Co.  v.  Marsano,  275. 
Scott  V.  Davis,  177,  314,  321. 

«.  Hawkins,  361,  365. 

V.  Macy,  1-7. 

V.  Manchester  Print  Works, 

171. 

■».  Shearman,  373,  315. 
Scrimpf  ^.  McArdle,  118. 


CASES    CITED. 


it 


Scruggs  V.  Blair,  41. 
Scrughani  v.  Carter,  525. 
Seaman  v.  Hicks,  543. 
Searcy  v.  Platte  County,  430. 
Sears  v.  Hanks,  525. 
Seaver  v.  Fitzgerald,  69. 
Seay  v.  Greenwood,  451. 
Security  Loan  Association  c. 

Weems,  373. 
Seekins  «.  Goodale,  144. 
Seeley  v.  Brown,  lOG,  425. 
Seely  v.  Board  of  Education,  236. 
Seers  v.  Blakesly,  423. 
Seibert  v.  Switzer,  70,  71,  529. 
Selheimer  v.  Elder,  248. 
Sellick  V.  Twesdall,  91. 
Selz  V.  Atkinson,  386. 

V.  Belden,  433. 
Semmes  v.  United  States,  476. 
Senecal  v.  Smith,  113. 
Sessions  v.  Stevens,  562. 
Sewall  V.  Mattoon,  280. 
Seward  v.  Heflin,  367,  562,  564. 
Sewell  V.  Savage,  492,  582,  597. 
Sexey  v.  Adkinson,  145. 
Sexton  V.  Amos,  358,  367,  373. 

V.  Rhames,  275. 
Seymane  v.  Gresham,  179. 
Seymour  v.  Kramer,  197. 
V.  Newton,  159. 
Shaddock  v.  Marsh,  103,  430,  433. 
Shaffer  v.  Mason,  63. 
Shannon  v.  Blum,  153. 
Sharp  V.  Baird,  182,  263. 

V.  Clark,  221,  597. 
Sharpe  v.  Hunter,  445. 
Sharpless  v.  Zeigler,  92. 
Sharts  v.  Await,  503. 
Shaver  v.  White,  525. 
Shaw  V.  Bunker,  358,  362,  373. 

V.  Holmes,  148. 

V.  Lawtou,  280. 

V.  O'Brion,  286. 
Shealey  v.  Toole,  361,  531. 
Shedd  V.  McConnell,  412. 
Sheedy  v.  Second  Nat.  Bank, 

27,  205,  365,  484. 
Sheehan  v.  Marston,  382. 
Sheets  v.  Culver,  206. 


Sheffield  v.  Gay,  93. 
Sheirburn  v.  Cordova,  326. 
Sheldon  v.  Hinton,  375,  376. 

V.  Litchfield  County,  234. 
V.  Newton,  329. 
V.  Stewart,  434. 
V.  Wright,  273,  274,  276,  3:5 
Shelly  V.  Smith,  204. 
Shei)ard  v.  Shepard,  495. 
Sheppard  v.  Collins,  398. 
V.  Powers,  354. 
Sliermer's  Appeal,  17. 
Sherrill  v.  Beach,  50,  55. 

V.  Bench,  105,  106. 
Sherry  v.  Dean,  315. 
Shetler  v.  Thomas,  503,  560,  565. 
Shewell  v.  Keen,  233. 
Shield  V.  Dothard,  106. 
Shinn  v.  Holmes,  17. 

V.  Zimmerman,  597. 
Shipmau  v.  Woodbury,  38,  45,  58 
Shipp  V.  Davis,  99. 
Shirley  v.  Byrnes,  9, 20,  313,  323,  40v( 

«.  Owners,  27. 
Shirley's  Admr.  v.  Jones,  543,  543. 
Shivers  v.  Wilson,  357. 
Shockley  v.  Bulloch,  77,  80. 
V.  Davis,  117,  423. 
Shoe  &  Leather  Bunk  v.  Mechanics 
Bank,  414 
Shove  V.  Dow,  486. 
Shrewsbury  v.  Pearson,  428,  433, 
Shriver  v.  Harbaugh,  148. 
Shriver's  Lessee  «.  Lynn, 

339,  330,  331,  338 
Shrove  v.  Dow,  493. 
Shroyer  v.  Nickell,  538. 

V.  Richmond,  339. 
Shufelt  V.  Cramer,  314,  387. 
ShufF®.  Morgan,  184. 
Shu  gar  t  v.  Orr,  47,  50. 
Shultz  V.  Morrison,  451. 
Shumway  v.  Rutter,  163,  188. 
Shuster  v.  Finau,  393. 
Sibley  v.  Brown,  185. 
V.  Fernie,  158. 
V.  Leffingwel],  313,  495. 
V.  Story,  384,  385,  386., 
V.  Waffle,  276,  315. 


lii 


CASES    CITED. 


Sigourney  v.  Eton,  403. 

V.  Lamed,  501,  524,  544. 
Silverwood  v.  Bellar,  199. 
Sime's  Estate,  223,  220. 
Simmon  v.  Worthington,  545. 
Simon  v.  Shelter,  84,  114. 

«.  Stetter,  84,  433. 
Simonds  v.  Harris,  601. 
Simons  v.  Jacobs,  43,  51,  433. 
Simpkins  v.  Malatt,  94, 
Simpson  v.  Burch,  69. 
V.  Harry,  196. 
V.  Knight,  119. 
Sims  V.  Goettle,  477. 

V.  Jacobson,  414. 
Sinclair  v.  Tarbox,  281. 
Singer  Manuf.  Co.  v.  Mason,  436. 
Singer  «.  Townsend,  361. 
Singleton  v.  Wofford,  84. 
Sir  John  Parrot's  Case,  597. 
Sitzman  v.  Pacqiiette,  276,  315. 
Skiif  V.  Stuart,  85,  91,  93. 
Skillman  v.  Bethany,  159. 
Skipper  v.  Foster,  597. 
Skowhegan  Bank  v.  Farrar,  168,  195. 
Slaughter  v.  Bevans,  109. . 
Sledge  V.  Lee,  446. 

V.  McLaren,  113,  456. 
Sleet  V.  Williams,  86,  103. 
Sloan  V.  Bangs,  58. 
v.  Forse,  274. 
V.  McCracken,  445. 
Small  V.  Hutch  ins,  284. 
Smart  v.  Batchelder,  163,  281. 
Smiley  v.  Samson,  329. 
Smith  V.  Ainscow,  523. 

V.  Blatchford,  564. 

v.B.C.&M.  Ry.  Co.,  228. 

V.  Bradstreet,  21. 

V.  Canfield,  545. 

®.  Chadwick,  166,  535. 

-p.  Chapman,  202,  361. 

«.  Chicago,  etc.,  R.  R.  Co., 

358. 
.  ■».  Cicotte,  148,  149. 

V.  Clarke,  367. 

1).  Curtiss,  260. 

V.  Cutchen,  335,  338. 

V.  Davis,  77,  87,  415,  478. 


Smith  V.  Dickson,  344,  523,  560. 

V.  Eakin,  113. 

V.  Easton,  27,  56,  321,  432. 

V.  Engle,  329. 

V.  Fargo,  3.08. 

V.  Flanders,  384. 

V.  Foster,  100. 

V.  Gottinger,  480. 

V.  Grifiiu,  513. 

V.  Kennebec,  &c.  R.  R.  Co., 
168. 

V.  Luce,  77,  87,  90,  93. 

V.  McCutchen,  305,  322,  355. 

«.  Mulhern,  309. 

V.  Orser,  177. 

V.  Osgood,  150. 

■e.  Pearce,  422. 

V.  Reese  River  S.  &  M.  Co., 
541. 

V.  Rice,  330. 

V.  Richards,  541. 

V.  Sanborn,  185. 

V.  Scott,  510. 

«.  Sprague,  453. 

V.  Story,  22,  38,  43, 

45,  113,  444,  445. 

V.  Wells,  538,  542. 
Smith  &  Co.  V.  Zuchee,  499. 
Smith's  Case,  156. 
Smoot  V.  Eslava,  564. 

V.  Hart,  238. 
Smyth  V.  Anderson,  334. 
Snell  V.  Ins.  Co.,  542. 
Snouk  V.  Snetzer,  204. 
Snow  v.  Sheldon,  158. 
Somer  v.  Brewer,  502. 
Somers  v.  Emerson,  164. 

V.  Losey,  168,  217. 
Somerville  v.  Somerville,  39. 
Soule  V.  Chase,  373,  274. 
South  Bend  Bank  v.  Gandy,  200. 
S.  C.  R.  R.  Co.  V.  McDonald,  35,  239. 
S.  C.  R.  R.  Co.,  V.  People's  Saving 

Institution,  250. 
Southern  Bank  v.  McDonald,  487. 
Spalding  v.  Imlay,  233. 

V.  Simms,  45,  47,  416. 
Sparhawk  v.  Cioou,  199. 
Sparks  v.  Zebley,  58. 


CASES    CITED. 


liii 


Bpaulding  v.  Wallett,  22,  444. 
bpeak  V.  Kinsey,  205. 
Spear  v.  King,  120,  422. 
Spears  v.  Chapman,  36(3,  377. 
Speed  V.  Brown,  'J 38. 
Spencer  i.  Blaisdell,  165,  168. 
V.  Deagle,  57. 
«.  Rogers  Locomotive 

AVorks,  416. 
V.  School  District,  2o5,  236. 
Spengler  v.  Davy,  455,  456. 
Speyer  v.  Ihmels,  480,  433. 
Spiegelberg  v.  Sullivan,  27,  129,  322. 
Spiers  v.  Halstead,  77. 
Splahn  V.  Gillespie,  264,  267. 
Sprague  v.  Steamboat  Nav.  Co.,  244. 
Spring  V.  Ins.  Co.,  59. 
Sproule  V.  McNulty,  218, 
Squair  v.  Shea,  228. 
St.  Amant  v.  Beixcedon,  480,  431. 
St.  Clair  v.  Cox,  8,  130,  247. 
St.  George  i\  O'Connell  et  al.,  176. 
St.  Louis  P.  Ins.  Co.  v.  Cohen,  35. 
St.  Louis  V.  Regenfuss,  216. 
Staats  V.  Bristow,  155. 
Staats  V.  E.xecutors  of  Ten  Eyck,  453. 
Stacy  V.  Stichton,  99,  419. 
Stadler  v.  Moors,  214,  387. 
Staggers  v.  Washington,  106. 
Staniels  v.  Raymond,  212,  293. 
Stanley  v.  Arnow,  389,  390. 

'    V.  Ogden,  63. 
V.  Perry,  167. 
Stanton  v.  Holmes,  233. 
Staphouse  v.  County  of  New  Haven, 
St.  Jos.  Township  v.  Rogers,  '625.  [234. 
Staple  V.  Bird,  168. 
Staples  V.  Staples,  218,  221,  223. 
Starbuck  v.  Murray,  336. 
Stark  V.  Brown,  315,  417. 
Starke  v.  Marshall,  87. 
Starr  «.  Lyon,  118,  127,  421,  447. 

V.  Mayer,  69. 

V.  Moore,  280. 
State  V.  Baldwin,  281. 

V.  Brownlee,  213. 

V.  Conover,  552. 

V.  Cornelius,  27,  177,  314,  323. 

«.  Ely,  329. 


State  V.  Fitzpatrick,  553. 

V.  Foster,  144. 

V.  Gachenheimer,  329. 

V.  Gaillard,  541. 

V.  Jennings,  551,  566. 

V.  Long,  552. 

V.  Manly,  166,  513,  531. 

V.  Metzge-r,  331. 

V.  Miller,  513. 

V.  Moore,  14),  188. 

V.  Morris,  49,  95. 

V.  Penner,  263. 

V.  Penny,  16. 

V.  Sandford,  165;  Sutterfield,325. 

V.  Thomas,  449. 

V.  Wheeler,  560. 

V.  Williams,  445. 
State  Bank  v.  Hinton,  447. 
State  Bank  v.  Morris,  126. 
State  Bank  of  Fenton  v.  Whittle,  434 
State  of  Rhode  Island  v.  State  of 

Mass.,  829. 
State  ex.  rel.  Kahoon  v.  Krumpus, 

165,  166. 
State  ex.  rel.  v.  Baldwin,  567. 
Staunton  v.  Holmes,  219. 
Steamboat  Raritan  v.  Smith,  558. 

Farmer  v.  McCraw,  416. 
Napoleon  v.  Etter, 

117,  422. 
Stearns  v.  Dean,  159,  186. 
Stebbins  v.  Fish,  361. 
Stedman  v.  Vickery,  197. 
Steele  v.  Dodd,  55. 
Steers  v.  Morgan,  530. 
Steffons  V.  Wanbosker,  485,  493. 
Stein  V.  Bennett,  17. 
Steiner  v.  Central  R.  R.  Co.,  359. 
Stephen  v.  Thayer,  586. 
Stephens  ®.  AUmen,  123. 
Stephens  v.  Green  County  Iron  Co., 

437. 
Stephenson  v.  Walden,  160. 
Sterling  City  Mining  Co.  v.  Cock, 

446. 
Sterrett  v.  Howarth,  258. 
Steuben  Co.  Bank  v.  Alberger, 

83,  94,418,415,431,478. 
Stevens  v.  Able,  22,  441. 


liv 


CASES    CITED. 


Stevens  v.  Bell,  193. 

V.  Brown,  528. 
V.  Dillman,  208. 
V.  Middleton,  92. 
®.-  Perry,  170,  205. 
V.  Phoenix  Ins.  Co.,  246. 
V.  Wrisley,  499. 
Stevenson  v.  McLean,  144. 
V.  Bobbins, 

118,  420,447,450. 
StevFart  v.  Board,  etc.,  272,  315. 
V.  Clark,  82. 
V.  Cole,  56. 
V.  Dobbs,  408. 
V.  Heideuheimer,  80,  104. 
e.  Katz,  93,  96,  119. 
v.  Marquis  of  Bute,  168. 
V.  Porter,  342. 
Stickney  v.  Davis,  184. 
Stienle  v.  Bell,  69. 
Stiles  1).  Davis,  281,  295,  582,  593. 
Stillman  d.  Isham,  219,  233. 
Stimpson  v.  Maiden,  561. 
Stimson  v.  AVard,  284. 
Stinson  v.  Casw^ell,  196,  204. 

V.  Clark,  162. 
Stinton  v.  Steamboat  Roberts,  559. 
StockettB.  Nicholson,  331. 
Stockley  v.  Wadman,  145,  582. 
Stockton  V.  Douney,  27,  177,  251. 
Stockwell  V.  McCracken,  355. 
Stoddart  v.  McMahon, 

173,  251  253,  253. 
Stokes  V.  Potter,  100. 
Stonach  v.  Glessner,  391,  549. 
Stone  V.  Boone,  418,  433. 
«.  Dean,  168,  206. 
V.  Magruder,  357. 
V.  Swift,  456. 
Storm  V.  A.dams,  219. 

V.  Cotzhausen,  380. 
Story  V.  Elliott,  139. 
V.  Kemp,  367. 
Stouifer  v.  Niple,  49. 
Stoughton  V.  Pasco,  495. 
Stout  V.  Leonard,  36,  37,  39. 

V.  Woods,  560. 
Stowe  V.  Buttrick,  285,  287. 
V.  Meticrve,  167. 


Stratton  v.  Brigham,  38,  45,  58. 

V.  Hum,  224. 
Straus  V.  Wessel,  164. 
Strauss  v.  11.  R.  Co.,  203.   • 
Street  v.  Smith,  249. 
Strieker  v.  Kelly,  333.     . 
Strickland  v.  Martin,  177. 
Strode  V.  Patton,  53.S,  542. 
Strong  V.  Hollon,  361,  379,  385. 
Strout  V.  Bradbury,  161,  219,  281. 
Struthers  v.  McDowell,  105,  106. 
Stuart  V.  Lacoume,  401. 

V.  West,  203. 
Slurtevarit  v.  Robinson,  561. 
Sublett  V.  Wood,  28,  432. 
Succession  of  Durand,  42. 
Sueterlee  v.  Sir,  69. 
Sullivan  v.  Blackw^ell,  331. 
V.  Fugate,  87,  89. 
V.  Langley,  206,  351,  377. 
Surty  V.  Skilton,  47. 
Sutherland  v.  Peoria  Bank,  177,  250. 
Suydam  v.  Huggeford,  490,  581. 

v.  Williamson,  326. 
Swager  v.  Pierce,  63. 
Swain  v.  Mizner,  180. 
Swan  V.  McCracken,  189,  565. 

®.  O'Fallon,  427,  430. 
Swan  V.  Summers,  196. 
Swaney  v.  Hutchins,  37,  39,  43. 
Swiinn  V.  Broome,  138. 
Swartz  V.  Lawrence,  404,  469. 
Swayze  v.  Doe,  274. 
Sweet  V.  Reed,  57,  196,  205,  370,  374. 
Sweezey  v.  Bartlett,  416,  430,  432. 
S;»vett  V.  Brown,  292,  295,  342,  593. 

V.  Sprague,  274. 
Swift  V.  Crocker,  477. 

V.  Tyson,  326. 
Switzwer  v.  Carson,  430. 
Sydnor  v.  Tolman,  93. 


T. 


Tabor  v.  Armstrong,  591. 

V.  Nye,  203. 

V.  Van  Vranken,  214,  373. 
TaiTts  V.  Manlove,  165,  492,  582,  595. 
Taiutor  v.  Williams,  177, 288, 314,  333. 


CASES    CITED. 


Iv 


Talbot «.  Harding,  595. 

V.  Pierce,  137,  431. 
Talcott  V.  Rosenberg,  85,  91,  95,  258. 
Taiemon  v.  Cardenas,  4Q. 
Tallman  v.  Bigelow,  90,  93. 

^^  McCarty,  391,549. 
Talmie  v.  Thompson,  334. 
Tarns  V.  Bullitt,  5G2. 
Tappan  v.  Harrison,  586. 
Tarbell  v.  Bradley,  Gn.  416. 
Tarkinton  v.  Broussard,  75,  425. 
Taylor  v.  Burlington  kSt  Mo.  R.  R. 

Co.,  240. 

V.  Carryl,  319,  034. 

«.  Collins,  :.62. 

«.  Echlord,  495. 

V.  Emery,  2G1,  486. 

V.  Gillian,  1G8,2.:2. 

V.  Jones,  185. 

V.  Kain,  353. 

V.  Knox,  38,  44,  53. 

V.  Kuhuke,  54. 

V.  McDonald,  156. 

V.  Mixter,  172,  2J6. 

V.  JMyers,  53. 

V.  Richards,  119,  428,  429. 

V.  Sutt,  120. 

V.  Taylor,  405,  438. 

V.  Thompson,  3"24. 
Teal  V.  Lyons,  113,  455. 
Templ-e  v.  Cochran,  45,  450. 
Ten  Brock  v.  Pendleton,  418. 
Tennant  v.  Battey,  31,  509. 
Terrill  v.  Rogers,  10. 
Terry  v.  Lindsey,  234. 

V.  Sisson,  306,  '191. 
Tevis  d.  Hughes,  137,  421,  435. 
Thatcher  v.  GofT,  133. 

V.  Powell,  330. 
Thayer  v.  Sherman,  318,  223. 

V.  Southwick,  302. 
V.  Tyler,  219,  336. 
Theall  v.  Disbrow,  495. 
The  Archer,  410. 
The  Blanche  Page,  405. 
The  Caroline,  99. 
The  C.  F.  Ackerman,  405. 
The  Daniel  v.  Gardner,  85. 
The  Eenroom,  474. 


The  Emily  and  Caroline,  99. 
The  Excelsior,  &c.  Co.  v.  Lukens, 

511,  513. 
The  Floyd  Co.  Ag.  and  Median.  As- 
sociation  v.  Tompkins,  394. 
The  Frances,  474. 
The  Independent,  380. 
The  Lafayette  Ins.  Co.  v.  Friend,  336. 
Tlie  Mariauna,  474. 
The  ]\Iartha  C.  Burnite,  410. 
The  Mary,  272. 
The  Merino,  99. 
The  Monte  Allegre,  542. 
The  Ohio  &  Miss.  &c.  Co.  v.  Alvey, 

503. 
The  Oliver  Jordan,  219. 

The  People  v.  Barnet,  394. 

V.  Bradley,  394. 
The  People  ex.  rel.  Townsend  &  Al- 
exander V.  Cass  Circuit  Judge,  374. 
The  People  v.  Hubbard,  179. 
The  People's  Ferry  v.  Beers,  559. 
The  Robert  Fulton,  219. 
The  Samuel,  99. 
The  State  ex.  rel.  v.  Manly,  510. 

V.  Boston,  &c.  R.  R.  Co., 

228. 
ex.  rel.  v.  Miller,  510. 
The  Steamboat  Orleans  v.  Phoebus, 

559. 
The  Steamboat  Rover  v.  Stiles,  558. 
The  Tobago,  474. 
The  Virgin,  405. 
Theirman  v.  Vahle,  88,  89,  97. 
Thelusen  «.  Smith,  472. 
Thole  V.  Watson,  511. 
Thomas  v.  Sprague,  374,  358. 
Thompson  v.  Allen,  343,  561,  592. 

©.Arthur,  25, 118, 432, 447. 
V.  Baker, 

286,  287,  288,  524. 
V.  Brown,  161,  219. 
V.  Butler,  558. 
V.  Carper,  63. 
V.  Culver,  416,  430. 
V.  Eastburn,  251. 
V.  Fisehesser,  374. 
«.  Gould,  538. 
V.  Marsh,  161,  219. 


Ivi 


CASES    CITED. 


Thompson  v.  Rose,  159. 

V.  Silvers, 

191,  342,  528,  529. 

V.  Steamboat  Morton, 

272,  315. 

«.  Stewart,  199. 

V.  Thomas,  331,335. 

V.  Tolmie,  329,  330. 

V.  Turner,  396. 

V.  Wallace,  527. 

V.  Whitman, 

330,  337,  338,  339. 
Thorn  v.  Woodruff,  223,  344. 
Thormlike  v.  Bath,  163. 

V.  De  Wolf,  597. 
Thornton  v.  Mulquinne,  276. 

V.  Winter,  253. 
Thorp  V.  Elliott,  203,  366. 

V.  Preston,  203,  241,  306. 
Threshing  Machine  Co.  v.  Miracle, 

224. 
Thurneyssen  v.  Vouthier,  38,  50. 
Thurston  v.  Huntington,  4S6,  493. 
Tihbetts  v.  Tilton,  10. 

V.  Townsend,  44. 
Tichenor  v.  Coggins,  505. 
Tiffany  v.  Glover,  205. 

V.  Lord,  420. 
Tignor  v.  Wad  ley,  23,  07. 
Tilden  v.  Metcalf,  234. 
Tillinghast  v-  Johnson,  223,  342,  595. 
Tilton  V.  Cofiield,  532,  5-^5. 
Tim  V.  Smith,  414,  415,  478. 
Timmons  v.  Garrison,  181. 
Tindell  v.  Wall,  342,  592. 
Tingley  v.  Bateman,  227. 

V.  Dolby,  170. 
Tirrell  v.  Canada,  108. 
Titcomb  v.  Seaver,  196. 
Tobey  v.  Clafiin,  545. 
Todd  V.  Birdsall,  237. 
Toland  v.  Sprague,  312,  392. 
Tomlinson  «. 'Collins,  285,  230. 
Toledo  R.  R.  Co.  v.  Reynolds,  514,  527, 
Toland  v.  Sprague,  328. 
Tomlinson  v.  Stiles,  145. 

V.  Warner,  456. 
Tommey  v.  Gamble,  100,  102,  106. 
Torrance  v.  Botton,  538,  541. 


Torrey  v.  Otis,  281,  284. 
Totty  V.  Donald,  545. 
Toulmin  v.  Lesesne,  256. 
Town  V.  Tabor,  260. 
Towne  v.  Griffith,  190. 

V.  Leach,  205. 
Towns  V.  Pratt,  187. 
Townsend  v.  Libbey,  353. 

V.  Newell,  159,  160. 
Tracy  v.  Hornbuckle,  236. 

V.  McGarty,  372. 
Train  v.  Wellington,  288. 
Transit  Co.  v.  McKea,  451. 
Trapnall  v.  McAffee,  448,  451. 
Travis  v.  Tartt,  205,  344. 
Treat  v.  Barber,  183. 
Tredwell  v.  Koscoe,  525. 
Trellson  v.  Green,  21. 
Trenton  Banking  Co.  v.  Haverstick, 

82,  240. 
Triebel  v.  Colburn,  222,  237. 
Trieber  v.  Blacher,  184. 
Trembly  v.  Clark,  598. 
Trowbridge  v.  Means,  598. 

v.  Sickles,  86,  101. 
V.  Weir,  121. 
Trow  Printing  Co.  v.  Hart, 

83,  106,  414. 
Troy  V.  Sargeant,  158. 
Trudeau  v.  IMcVicar,  174. 
Trustees  of  School  v.  Tatman,  236. 
Tucker  v.  Adams,  450. 

V.  Atkinson,  599. 

V.  Butts,  223. 

V.  Byars,  251. 

V.  Clisby,  199. 

V.  Vandemark,  503. 

V.  White,  107. 
Tufts  V.  Carradiue,  2G6,  486; 

V.  McClintock,  145,  184. 
Tukey  ^).  Smiili,  281. 
Tunstall  v.  jMeans,  598. 
Tunstall  v.  Worthiugton,  344. 
Tapper  v.  Cassell,  210. 
Turbill's  Case,  133. 
Turner  v.  Armstrong,  202. 

V.  Bank  of  America,  330. 

V.  Burnell,  210. 

V.  Fendall,  101,  219,  221. 


CASES    CITED. 


Ivii 


Turner  v.  Killian,  551. 

c.  Lytle,  2-3,  185,  441,  483. 

V.  McDaniel,  88,  97. 

V.  Miller,  453. 
Turpin  v.  Coates,  372. 
Tuxworth  V.  Moore,  163. 
Twombly  v.  Hunnewell,  281. 
Tyler  v.  His  Creditors,  471. 
t).  Safford,  897,  433. 
V.  Ulmer,  280. 
Tyrrell's  Heirs  v.  Koimtree,  509,  523. 
Tyson  v.  Lansing,  127. 

U. 

TJllmeyer  v.  Ehrmann,  364. 
Ulmer  v.  Hiatt,  5J9. 
Underbill  v.  Calhoun,  238. 
Underwood  v.  Eobinson,  144. 
Union  Bank  v.  U.  S.  Bank,  35. 
Union  Lumbering  Co.  v.  Tronson, 

184. 
Union  Slate  Co.  v.  Tilton,  66,  67. 

United  States  v.  Ames,  405. 

«.  Arredondo, 
324, 329,  336,  539,  543. 

«.  Brown,  118. 

t.  Gordon,  118. 

«.  Graff,  179. 

V.  Hawkins,  472. 

«.  Hine,  551,  566. 

<c.  Langton  &  Trustees, 

r.  McDonald,  28L  [59L 

V.  Morgan,  118. 

V.  Mosely,  410. 

e.  Nelson,  398. 

®.  Reid,  326. 

v.  Robertson,  216. 

D.  Ruggles,  457. 

«.  State  Bank,  539. 

V.  The  Little  Charles, 
'99. 

D.  Vaughan,  211,  216. 

■p.  Williams,  525. 

t}.  Yates,  396. 
Upper  Mississippi  Tran.sportation 

Co.  V.  Whitaker,  391,  549. 
Upton  V.  Craig,  181. 
Utley  V.  Smith,  28L 


Vairon  v.  Edmonson, 

274,  275,  321,  331. 
Vallee  v.  Dumergus,  277,  304. 
Valle's  Heirs  v.  Fleming's  Heirs, 

538. 
Van  Alstyne  v.  Erwine,  100. 
Van  Amee  v.  Jackson,  168. 
Van  Arsdale  v.  Krum,  126,  127,  477. 
Van  Kirk  v.  Wilds,  77,  91. 
Van  Loan  v.  Kline,  21,  509,  523. 
Van  Loon  v.  Lyons,  92,  420. 
Van  Norman  v.  Judge  of  Jackson 

Circuit,  9,  27,  53,  85. 
Van  Pelt  v.  Littler,  145,  1«8. 
Van   Rensselaer  «.   Kearney, 

326,   543. 
Van  Riswick  v.  Lamon,  222. 
Van  Staphorst  v.  Pierce,  212. 
Van  Vichten  v.  Paddock,  135. 
Van  Wyck  y.  Hardy,  69. 
Vanderford  v.  Van  Valkenberg,  17. 
Varnell  v.  Speer,  250,  350. 
Varner  v.  Radcliff,  390,  393, 
Veazie  v.  Somerby,  163. 
V.  Williams,  543. 
Veiths  V.  Hagge,  449. 
Vertrees  v.  Hicks,  381. 
Very  v.  McHenry,  16. 
Victor  V.  Hartford  Ins.  Co.,  203. 
Vienne  v.  McCarty,  431,  433. 
Vierbeller  «.  Brutto,  223,  226. 
Vilas  V.  Reynolds,  174. 
Vincent  v.  Huddleston,  21. 
Vinton  V.  Bradford,  161,  219. 

v.  Mead,  413. 
Violet  V.  Tyler,  258. 
Vogel  V.  Reynold'b  Case,  506. 
Von  Beck  v.  Shuman,  548. 
Voorhies  v.  Bank  of  the  U.  S., 

324,  329,  336,  532. 

V.  Hoagland,'157,  427. 

V.  Sessions,  161,  222. 
Vorse  V.  Phillips, 

22,  443,  450,  451,  45c 
Vose  V.  Cockroft,  409,  436. 
V.  Handy,  274. 


Iviii 


CASES    CITED. 


w. 

Waddell  v.  Cook,  525. 
Wadleigh  v.  Jordan,  367. 
Wadsworth  v.  Clieeny,  105. 

1).  Walliker,  281,  287. 
Waffer  v.  Goble,  71,  77. 
Wagner  v.  Stocking,  22,  441. 
Waite  V.  Osborne,  223. 
Wakefield  v.  Fainuan,  185. 
Wal bridge  v.  Hall,  3yO. 

V.  Spalding,  120,  121. 
Walcott  V.  HendricK,  43. 

v.  Keith,  188,  295,  342,  592, 
593. 
Walden  v.  Dudley,  144. 
Waldman  v.  O'Donnell,  238. 
Waldron  v.  Wilcox,  209,  227. 
Wales  V.  City  of  Muscatine,  238,  240. 
Walke  1).  McGehee,  202. 
Walker  v.  Bank  of  Mobile,  115. 

V.  Barren  i,  42,  129,  321. 

V.  Cook,  235. 

V.  Cottrell,   18,  20,  276,  309, 
317,  321,  327,  332. 

V.  Day,  Griswold  &  Co.,  321. 

v.  Detroit,  Grand  Haven,  etc. 
R.  R  Co.,  196. 

V.  Fitts,  157,  187. 

V.  Foxcroft,  161,  219,  281. 

V.  Gibbs,  203. 

V.  Gilbert,  495. 

V.  Roberts,  478,  548. 

V.  Turner,  330. 

V.  Woods,  144. 

V.  Zorn,  526. 
Walkins  v.  Cawthoin,  314. 
Wall  V.  Pulliam,  283,  314,  331. 
Wallace  v.  Barker,  176. 

V.  Breeds,  162. 

V.  Castle,  40. 

V.  Finberg,  449. 

«.  Forrest,  145,  464. 

V.  Galloway,  156,  157. 

V.  Lawyer,  222,  233,  237. 

«.  McConnell,  523. 
Wallach  v.  Sippilli,  87. 
Wallis  V.  Forest,  595. 
V.  Murphy,  92. 


Wallis  V.  Wallace,  80,  91,  119. 
Walser  v.  Thies,  456. 
Walters  v.  ]V[onroe,  319. 
Walts  V.  Nichols,  487. 
Wambold  v.  Vick,  145. 
Ward  V.  County  of  Hartford, 

233,  234,  237. 
V.  Howard,  70,  477. 
V.  Lamson,  201. 
V.  Lewis,  211. 
V.  McKenzie,  21,  305,  321. 
Warden  v.  Adams,  496,  5'i4. 
Warder  v.  Thrilkeld,  49,  51,  55. 
Wardle  v.  Briggs,  367. 
Ward  well  v.  Jones,  235. 
Ware  v.  Gowen,  201. 

V.  Todd,  86,  91,  95,  469. 
Warne  v.  Kendall,  207. 
Warner  v.  Everett,  53,  85. 
1).  Perkins,  206. 
V.  Webster,  315,  322,  333. 
Warren  v.  Booth,  2^3. 

V.  Buck  minster,  162. 
V.  Copelin,  565. 
V.  Leland,  281,  284. 
■».  Lord,  106,  410,  425. 
V.  Purtell,  105,  141. 
Warren  Manuf.  Co. ©.Etna  Ins.  Co. 

835. 
Warwick  v.  Chase,  63. 
Washburn  v.  Bank  of  Bellows'  Falls, 

525. 
V.  Clarkson,  386. 
V.  N.  Y.,  etc.  Co.,  357. 
Wasson  v.  Cone,  128,  391,  405,  507. 

V.  Linster,  260. 
Waterhouse  v.  Bird,  285. 
V.  Smith, 

177,  260,  314,  323. 
Waterman  v.  Treat,  285. 
Watkins  v.  Cason,  564. 

V.  Cawthorn,  285. 
V.  Field,  342,  595. 
V.  S'evens,  131,  199. 
V.  Wallace,  77,  79,  91. 
Watson  V.  Kane,  374. 

V.  Kennedy,  450. 

V.  Pierpont.  37,  39,  43. 

V.  Simpson,  433. 


CASES  .-CITED 


lix 


Watson  V.  Todd,  161,  319,  231. 

V.  Watson,  144, 
Watt  V.  Games,  84. 
Watts  V.  Harding,  84. 

V.  Kobertson,  464. 
V.  Shi-opshire,  443. 
Wayman  ».  Southard,  336. 
Waynant  v.  Dodsou,  507. 
Waxelbaum  v.  Paschal,  37,  89,  333. 
Weaver  v.  Ashcroi't,  535. 
V.  Davis,  323,  323. 
V.  Hayward,  89. 
«.  Roberts,  368. 
V.  Wood,  380,  381. 
Webb  V.  Edwards,  538. 
V.  Lea,  354. 
■e.  McCauley,  333,  233. 
V.  Peale,  l'J9. 
Webber  v.  Doran,  366. 
Weber  v.  Weitliug,  o9. 
Webster  v.  Adams,  560. 
V.  Parsons,  330. 
V.  Reid,  309,  336,  338. 
V.  Steele,  303,  519. 
Wehle  V.  Spellmau,  407. 
Weiller  v.  Schreiber,  54,  58. 
Weimeister  v.  Manville,  92. 
Welch  V.  Gurley,  333. 
Weller  v.  Hawes,  451. 
Wellover  v.  Soule,  141,  305. 
Wells  V.  American  Express  Co., 

343,  344,  355. 
v.  Baldwin,  558. 
V.  Banister,  196. 
®.  Danford,  413. 
V.  Detroit,  9. 
1).  Gujney,  179. 
V.  Hawes,  199. 
V.  Parker,  79,  88. 
V.  St.  Dizier,  100,  434. 
V.  The  People,  38,  43. 
Welsh  «.  Joy,  356,  534. 
Wendell  v.  Pierce,  161,  318,  333,  335. 
Wentworth  v.  Weymouth,  565. 

V.  Whittemore,  303. 
Weiitzler  v.  Rose,  102. 
Weacott  V.  Archer,  37,  369,  333,  325. 
West  V.  Piatt,  306,  491. 
Weist  Phila.  Bank  v.  Dickson,  505. 


West  River  Bank  v.  Gorham,  161. 
Western  R.  R.  Co.  v.  Thornton,  243. 
Westervelt  v.  Lewis  &  Tooker, 

8,  310,  312. 
V.  Pinckney,  187. 
West  Phila.  Bank  v.  Dickson,  407. 
West  Tenn.  Agricultural  Association 
V.  Madison,  83. 
Wetherill  v.  Flanagan,  303. 
Wetherwax  v.  Varue,  8o,  96. 
Wetmore  u.  Daffin,  83,  131. 
Wetter  v.  Rucker,  563. 
Wharton  v.  Conger,  93,  351,  403,  437. 
Wheaton  v.  Sexton,  334. 
Wheeler  v.  Bowen,  334. 
V.  Cobb,  44. 
V.  Deguan,  38,  46,  427. 
V.  McDill,  399. 
V.  Slavens,  4"i0. 
1).  Smilh,  331. 
Wheelock  ».  Lee,  390. 
Whidden  v.  Drake,  338. 
Whipple  V.  Cass,  477. 

V.  Bobbins,  243,  355,  367. 
Whitaker  v.  Sumner,  173. 
Whitcomb  v.  Woodworth,  499. 
White  V.  Casey,  84,  £61. 

V.  Coleman,  3 14. 

v.  Crow,  533. 

V.  Cutter,  161. 

V.  Dunn,  204. 

V.  Featherstonhaugh,  412. 

v.  Floyd,  467,  470. 

®.  Jenkins,  196,  303. 

V.  Jones,  330,  535. 

V.  Ledyard,  336. 

V.  Leszynsky,  58. 

V.  Lynch,  98. 

V.  Madison,  291. 

«.  Morton,  187. 

V.  Stanley,  95. 

V.  White,  300,  894. 

V.  Williams,  56. 

V.  Wilson,  56,  438. 

«.  Woodward,  535. 

1).  Wyley,  448,  455,  456. 
Whitehead  v.  Henderson,  345,  361. 
Whiteside  v.  Oakman,  416. 
Whiting  V.  Budd,  389,  43G. 


CASES. ..CITED. 


Whitney  v.  Brunette,  78, 105, 54G,  548. 
V.  Butterfield,  138,  18:5,  506. 
V.  Fiirwell,  285,  286,  287. 
V.  Ladd,  281. 
V.  Lelimer,  517. 
V.  Munroe,  218. 
V.  Silver,  270. 
VThittenberg  v.  Lloyd,  142,  323. 
Wbittier  v.  Smith,  281. 
Whorton  v.  Morayne,  330. 
Wicker  v.  Scofield,  89. 
Wickes  V.  Caulk,  331. 
AVidgery  v.  Haskell,  179. 
Wight  1)  Wartfer,  77. 
Wigwall  V.  Union  C.  &  M.  Co.,  502. 
Wilbraham  v.  Snow,  280. 
Wilcox  V.  Clement,  214,  387. 
V.  Jackson,  336,  338. 
V.  Mills,  216. 
Wilcoxen  «.  Miller,  524. 
Wild  V.  Ferguson,  230. 
Wilder  v.  Bailey  &  Trustee,  220. 
«.  City  of  Chicago,  329, 
V.  Holden,  251. 
V.  Shea,  243,  366,  372. 
V.  Weatherfield,  595. 
V.  Wealherhead,  342, 489, 597. 
Wilds  V.  Blanchard,  176. 
Wiley  V.  Aultman,  81,  83. 
V.  Bennett,  84,  103 
«.  Moor,  398. 
V.  Pratt,  394. 
V.  Sledge,  156. 
V.  Tranwick,  456. 
Wilhelmi  v.  Haffner,  376. 
Wilke  V.  Cohn,  80,  323. 

V.  Jones,  9,  27,  312,  322,  513. 
Wilkenson  v.  Hall,  367. 
Wilkins  v.  Tourtellott,  87,  183. 
Wilkinson  v.  Leland,  330. 
Will  V.  Whitney,  183. 
Willard  v.  Sheafe,  203. 
V.  Sperry,  251. 
Willet  V.  Eq.  Ins.  Co.,  227. 
Willets  V.  Ridgeway,  510,  513. 
Williams  v.  Babbit,  259. 

v.  Barrow,  117,  118. 

V.  Blunt,  330,  421. 

V.  Boardmau,  233,  235. 


Williams  &  Bruce  v.  Stewart, 

392,  393. 
V.  Cheesebrough,  264. 
V.  Gage,  203,  204. 
V.  Glasgow,  77. 
V.  Hitzie,  517. 
V.  Housel,  367,  375. 
®.  Hunter,  449,  455,  456 
V.  Jones,  222,  375. 
V.  Le  Blanc,  453. 
V.  Marsion,  203. 
V.  Martin,  93. 
V.  Morgan, 

145,  159,  186,  568 
V.  Muthersbaugh,  601. 
V.  Finer,  481. 
V.  Powell,  179,  283. 
V.  Railroad  Co.,  203,  366. 
V.  Reed,  120,  199. 
V.  Skipwith,  423. 
V.  Stewart, 

271,  320,  323,  331,  393. 
V.  St.  Louis,  Iron  Mountain, 
etc.  R.  R.  Co.,  164 
V.  Vanmetre,  481. 
«.  Walker,  413. 
V.  Whiting,  39. 
v.  Williams,  393. 
V.  Young,  201. 
Williamson  v.  Ball,  330. 
V.  Berry, 

326,  330,  336,  338 
«.  Bower,  530. 
V.  Bowie,  530,  595. 
®.  Harris,  203. 
Willis  V.  Crooker,  106,  410. 
V.  Lyman,  83. 
V.  McNeill,  455,  457. 
Wills  V.  Noyes,  457. 
V.  Sprague,  17. 
Wilmerding  v.  Cunningham,  87. 
Wilson  V.  Albright,  168,  205. 

V.  Arnold,  77,  79,  87,  110, 
V.  Bank  of  La.,  230. 
V.  Bartholomew,  212. 
V.  Beadle,  321. 
V.  Blake,  492. 
V.  Britton,  57,  58,  431. 
V.  Barney,  361.  5j2. 
V.  Churchman,  27. 


CASES    CITED, 


Ixi 


Wilson  V.  Forsythe,  586. 
V.  Kelly,  569. 
V.  Lane,  188. 
V.  Lewis,  237,  288. 
V.  Louis  Cook  Mauf.  Co.,  41G. 
V.  Manufacturing  Co.,  449. 
v.  Murphy,  563. 
V.  Paulson,  165. 
V.  Ray,  261,  424. 
V.  Robertson,  59. 
V.  Root,  451. 
V.  Wagar,  358. 
V.  Wilson's  Admr.,  402,  404. 
v.  Wood,  168. 
Wiltse  V.  Stearns,  39,  86. 
Winchell  v.  Allen,  219,  223,  233. 
Winchester  v.  Cox,  450. 
Wingate  v.  Wheat,  181. 
Winkler  v.  Barlhel,  92. 
Winslow  «.  Bracken,  376. 
Winsor  v.  Orcutt,  451. 
Winston  v.  Ewing,  204. 
Winstonley  v.  Sav^age,  46. 
Wirker  v.  Scofield,  110. 
Withers  «.  Fuller,  514. 
Witte  V.  Meyer,  546. 
Wittner  v.  Von  Minden,  62. 
Wolf  V.  Dearborn,  159. 

V.  McGavock,  39,  43. 
V.  Styx,  20,  402,  407. 
Wolfe  V.  Crawford,  159.  160,  187.    • 
Wolff  V.  Bank  of  Commerce,  526. 
Wolford  V.  Phelps,  536. 
Womack  v.  McAhren,  394. 
Wood  V.  Barker,  455,  456. 
v.  Bodine,  567. 
V.  Buxton,  203. 
V.  Carleton,  436. 
V.  Denny,  106,  410. 
«.  Partridge,  203,  565. 
«.  Squiers,  120,  127,  421. 
V.  Thomas,  50  i.     - 
V.  Weir,  171,  455,  456. 
■W.Wells,  100. 
Woodbridge  v.  Morse,  218,  223. 

V.  Perkins,  213. 
Woodbury  v.  Long,  145,  160,  185. 
Woodhouse  v.  Commonwealth  Ins. 

Co.,  217. 


Woodley  V.  Shirley,  137,  251,  423. 
Woodman  v.  Trafton,  282,  289. 
Woodruff  V.  French,  595. 
V.  Ives,  67. 
V.  Taylor,  17. 
Woods  V.  Milford  Savings  Inst., 

522,  561. 
Woodward  v.  Munson,  285,  286,  402. 

V.  Woodward,  224. 
Woodworth  v.  Lemmermau,  177. 
Woolfolk  V.  Ingram,  509. 
Woolkins  v.  Haid,  9,  4G0. 
Wooiter  V.  McGee,  27. 
Worcester  Nat.  Bank  v.  Cheeney, 

21, 172. 
Work  V.  Titus,  120,  421. 
Worseley  v.  De  Mattoe,  500. 
Worstell  V.  Ward,  77. 
Worthington  v.  Carey,  106. 

V.  Hylyer,  274. 
Wray  v.  Gilmors,  50,  99,  419. 
Wright  r.  Bosworth,197;  Boynfon.HnG. 
v.  Foord,  201;  Andiews,  896. 
V.  Hale,  141,  545. 
V.  Herrick,  107,  206,  491. 
«.  Hobson,  87. 
«.  Ragland,  110,  420. 
V.  Smith,  27,  77,  84,  92, 103, 
120,  136,  323,  417,  481,  530,  582. 
Wrompelmier  v.  Moses,  56. 
Wyatt  V.  Barwell,  501. 

V.  Stuckley,  559. 
Wyatt's  Admr.  v.  Rambo,  354. 
Wynne  v.  Govenor,  398. 
Wynn  v.  Wyatt,  396;  Wyman  v.  Rus- 
sell, 522. 
Y. 
Yale  V.  Cole,  117. 

V.  Hoopes,  481. 
Yarnell  v.  Haddaway,  87. 
Yeatman  v.  Savings  Inst.,  21,  172. 
Yelverton  v.  Burton,  266,  485. 
Yerby  v.  Lackland,  357. 
Yocum  V.  Barnes,  398. 
V.  White,  561. 
Yokum  V.  Thomas,  453. 
Young  V.  Campbell,  507. 
V.  Cooper,  61. 
V.  Grey,  117,  421. 


Ixii 


CASES    CITED. 


Young  V.  Nelson,  50,  51. 
V.  Koss,  227. 
V.  Walker,  288. 
V.  Young,  223. 


Zaclierie  v.  Bowers,  275. 


Zang  V.  Stover,  344. 
Zeigenhagen  v.  Doe,  582. 
Zeregal  v.  Benoist,  46,  103,  322,  416 
Ziegenhagen  v.  Strong,  477. 
Zimmer  v.  Davis,  201,  385. 
Zollar  V.  Janorin,  407. 
Zook  V.  Blough,  413. 


Attachment  and  Gaemshment. 


CHAPTEE  I. 

THE  REMEDY  OUTLINED. 

§  1.     Definitions    and    Distinctions.      §  5.     The  Suit  Limited  to  the  Debt- 

2.  The  Suit  Personal  in  Form.  or's  Property. 

3.  The  Suit  Against  Property  in  6.     Absence  of  Pre-existing  Lien. 

Etiect.  7.     Essentials  to  Create  the  Lien. 

4.  Ancillary  Proceeding. 

Sec.  1.    Definitions  and  Distinctions. 

In  prominent  features,  nearly  all  the  attachment  laws  of  this 
country  are  alike.  There  is  sucli  substantial  uniformity  that  the 
theory  and  practice  under  the  statutes  may  be  found  suscepti- 
ble of  being  treated  with  unity  and  system. 

Attachment,  as  generally  authorized,  is  a  proceeding  to  create 
and  enforce  a  lien.  It  is  a  remedy  for  the  collection  of  ordi- 
nary debt  by  preliminary  levy  upon  property  of  the  debtor  to 
conserve  it  for  eventual  execution  after  the  lien  shall  have  been 
perfected  by  Judgment.  The  remedy  is,  in  some  States,  appli- 
cable in  suits  for  torts  and  for  liquidated  debts  not  due. 

Statutory  authorizations  of  the  remedy  for  other  purposes, 
such  as  the  vindication  of  pre-existing  liens,  the  recovery  of 
purchase  money  by  the  sequestration  of  specific  property,  and 
reparation  for  not  delivering  property  to  the  sheriff  under  an 
order  of  court,  are  exceptional. 

The  employment  of  the  process  to  compel  the  appearance  of 
the  debtor,  or  attachment  as  distraint,  has  fallen  into  disuse; 
it  is  almost  universally  destitute  of  statutory  warrant,  and  is' 
not  in  harmony  with  the  remedy  now  prevailing. 
1 


THE     EEMKDY    OUTLINED. 


The  term,  attachment^  is  used  vai-ionslj  to  designate  the  writ, 
the  preliminary  seizure,  and  the  levy  ul'tur  an  ordinary  judg- 
ment, as  well  as  the  remedy  in  general  alx>ve  explained.  It 
is  also  employed  as  expressive  of  the  arrest  of  a  person;  for 
instance,  of  a  witness  or  a  juror  for  not  obeying  summons,  or 
of  any  one  for  contempt  of  court.  In  this  work,  it  is  confined 
to  property  and  is  used  compendiously  to  indicate  that  extraor- 
dinary remedial  proceeding  to  which  the  creditor  may  resort 
when  ordinary  process  is  inadequate. 

Garnishment  is  attachment  in  the  hands  of  a  third  person. 
Restrictedly,  it  is  the  admonition  or  warning  given  him,  requir- 
ing him  to  hold  what  is  thus  attached  and  submit  to  the  future 
order  of  court  respecting  it.  The  purpose  of  the  attachment 
of  a  debtor's  property  or  credit  in  third  hands,  with  the  warn- 
ing given,  is  the  same  as  that  of  the  direct  seizure  of  property 
found  in  the  possession  of  the  defendant:  the  creation  of  an 
inchoate  lien  to  be  perfected  by  judgment;  the  conservation  of 
the  debtor's  property  to  secure  the  payment  of  the  debt. 

It  cannot  be  said  that  property  is  garnished^  only  a  person 
can  be  warned.  The  garnishee  is  garnished;  the  property  or 
credit  attached  in  his  hands  is  subjected  to  tlie  process  of 
garnishment,  and  therefore  lawyers  sometimes  say  that  it  is 
garnisheed.  If  this  latter  term  is  allowable  at  all,  it  should  be 
confined  to  this  sense,  and  perhaps  the  need  of  such  a  word  may 
justify  its  use;  but  it  is  never  allowable  to  say  that  property  is 
garnished. 

It  will  prove  advantageous  to  treat  the  two  forms  of  attach- 
ment together  so  far  as  they  are  governed  by  common  principles, 
giving  chapters  specially  to  garnishment  only  when  it  shall  be 
requisite. 

Attachment,  (whether  accompanied  by  garnishment  or  not,) 
is  divided  into  foreign  and  domestic.  The  distinction  is  drawn 
in  some  of  the  statutes,  and  strictly  maintained  in  the  practice 
under  them.  It  was  formerly  more  generally  insisted  upon  than 
it  is  now;  and,  though  the  great  majority  of  the  States  now 
treat  non-residence  merely  as  one  of  the  grounds  of  attachment, 
and  authorize  proceedings,  on  such  ground,  of  precisely  the 
same  character  as  those   on  other  grounds — thus    simplifying 


DEFINITIONS    AND    DISTINCTIONS.  O 

the  general  practice — still,  in  many  of  those  States,  tlie  natural 
differences  between  the  two  kinds  of  attachment  are  often  pointed 
out  in  decisions. 

For^eign  Attachment  is  a  proceeding  against  the  property  or 
credit  of  a  non-resident.  It  was  formerly  confined  to  seizure 
in  third  hands  when  nothing  could  be  found  in  possession  of  the 
debtor,  and  was  always  accompanied  with  garnishment.  It  was 
modelled  in  this  country  upon  the  custom  of  London.  The 
proceedings  were  as  follows:  A  complaint  was  filed  against  the 
debtor  and  a  writ  of  summons  issued;  then,  if  nothing  was 
found,  to  be  attached  as  a  distress  .to  compel  the  appearance  of 
the  defendant,  the  writ  was  returned  'nihil,'  thereupon,  the 
phiintilf,  upon  suggesting  that  some  third  person  is  a  debtor  of  the 
defendant  or  the  possessor  of  goods  belonging  to  the  defendant, 
caused  a  writ  of  garnishment  to  be  issued  and  served  upon  such 
third  person,  warning  him  to  withhold  payment  or  delivery  to 
the  defendant,  and  to  answer  as  to  his  indebtedness  or  possession 
as  alleged.  If  the  garnishee  answered  atlirmatively  or  did  not 
deny  his  liability,  the  defendant  was  then  called  and  defaulted, 
and  the  garnishee  was  charged.  No  final  decree  was  rendered 
against  the  defendant,  but  there  M'as  a  judgment  nisi  against 
him,  and  an  order  upon  the  garnishee  to  pay  or  deliver  to  the 
court;  and  then  the  plaintiff  could  have  the  attached  property 
or  credit  sold  to  satisfy  his  claim  upon  his  giving  surety  or 
pledge  to  restore  the  proceeds  in  case  the  defendant  should  aj)pear 
within  a  j^ear  and  a  day,  enter  into  recognizance,  plead  to  the 
cause  and  disprove  the  debt. 

Originally  the  garnishment  had  reference  only  to  the  indebt- 
edness of  a  third  person  to  the  defendant,  as  shown  by  Mr, 
Locke  in  his  work  on  Foreign  Attachment;  but  both  in  England 
and  this  country  the  practice  was  subsequently  extended  so  as 
to  reach  personal  property  in  his  hands.  The  original  States  de- 
rived foreign  attachment,  as  above  described,  from  their  mother 
country;  and  it  is  still  practiced,  almost  intact  Mdth  respect  to 
some  features,  in  a  few  of  them,  as  will  be  shown  hereafter. 
Generally,  however,  throughout  the  country,  it  has  outgrown 
its  model;  and,  since  the  total  abolishment  of  imprisonment  for 


4 


THE    EEMEDY    OUTLINED. 


debt,  and  the  desuetude  of  distraint  to  compel  appearance,  it 
lias  been  merged  into  tlie  prevalent  remedy,  so  that  non-resi- 
dence is  simply  one  of  the  grounds  lor  issuing  the  j^rocess  of 
attachment  undistinguished  as  either  foreign  oi'  domestic. 

Domestic  Attachment  is  a  proceeding  against  tlie  property 
or  credits  of  a  resident  debtor.  The  two  forms  may  be  pre- 
sented without  distinction,  except  in  those  features  where  a  real 
diflerence  is  discovered.  In  ilhistration  of  such  a  diflerence,  it 
is  only  necessary  now  to  mention  that  the  charge  of  fraud  is 
not  made  or  implied  in  the  allegation  of  non-residence,  but 
always  is  at  least  implied  when  the  creditor  swears  that  tht 
debtor  has  absconded,  or  hidden  himself  or  his  eifects,  or  dis- 
posed of  his  property  to  avoid  the  payment  of  his  debts,  or  done 
anything  for  which  domestic  attachment  is  ordinarily  authorized. 
Ths  charge  is  merely  incidental,  but  it  indicates  a  real  and 
important  difference  between  the  two  branches,  leading  to  differ- 
ent provisions  relative  to  procedure,  even  in  some  of  the  States 
which  do  not  sharply  draw  the  demarcation  line  between  the 
two.  In  those  where  foreign  and  domestic  attachment  are 
recognized  and  distinguished  by  statute,  proceedings  under  the 
one  differ  materially  from  those  under  the  other.  In  the  great 
majority  of  the  States,  foreign  residence  is  classified  with 
absconding  and  other  charges  as  a  ground  for  attachment,  and 
the  above  mentioned  division  is  not  established  by  statute,  and 
only  recognized  by  the  courts  when  essential  to  the  rightful 
application  of  principles. 

Ancillary  Attachment  is  a  proceeding  in  aid  of  the  personal 
action  when  the  debtor  has  been  served  or  has  appeared  in  court 
so  as  to  be  liable  to  a  personal  judgment.  It  may  be  either 
foreign  or  domestic;  it  may  take  the  form  of  the  garnishment 
process;  the  essential  characteristic  is  that  it  must  be  auxiliary 
to  the  main  action.  If  the  defendant  is  in  court,  whether  he  is 
a  resident  or  not,  his  property  found  in  his  possession  may  be 
attached,  or  his  property  or  credits  found  in  the  hands  of  a 
third  person  may  be  subjected  to  garnishment;  and,  in  either 
case,  the  attachment  is  ancillary. 

Tlie  remedy  thus  employed  is  usually  an  adjunct  of  the  main 
suit;  but  when  it  is  used  in  a  separate  proceeding  to  aid    the 


THE    SUIT    PERSONAL    IN    FORM.  0 

recovery  of  tlie  debt  for  which  the  principal  action  is  instituted, 
it  is  none  the  less  subordinate.  The  pendency  of  one  of  the 
suits  cannot  bc^pleaded  as  a  bar  to  the  other. 

Sec.  2.    The  Suit  Personal  in  Form. 

The  attachment  suit  is  always  personal  in  form.  It  is 
instituted  by  the  creditor  against  his  debtor  to  recover  the 
debt  alleged  to  be  due;  also,  in  some  States,  for  debt  not 
due,  and  upon  any  money  demand  —  even  for  damages  ex 
delicto,'  and  there  are  exceptional  authorizations  for  attach- 
ment when  the  suit  is  to  recover  specitic  property,  and  when 
it  is  for  some  other  designated  purposes.  In  all  cases,  the 
debtor  is  impleaded,  and  a  personal  Summons  is  directed  to  him, 
commanding  his  -attendance  at  court.  If  he  be  served,  or  if, 
without  service,  he  appear,  he  may  except  ^o  the  proceedings, 
tile  pleas,  join  issue,  confess  judgment,  and  do  all  that  any  other 
personal  defendant  may  do  in  an  ordinary  case.  The  evidence 
adduced  by  the  plaintiff  is  against  the  defendant  as  a  personal 
litigant.  Judgment  is  rendered  for  or  against  the  defendant  in 
his  personal  capacity.  If  rendered  against  him,  execution  may 
be  issued  against  any  property  of  his,  liable  thereto,  as  in  any 
other  personal  action. 

The  suit  is  instituted  witliout  the  previous  seizure  of  any 
property.  It  is  not  ordinarily  brought  in  vindication  of  any 
recognized,  recorded,  pre-existing  lien  upon  any  specific  property. 
No  particular  property  is  described  in  the  petition,  none  is 
impleaded,  none  is  made  the  fictitious  defendant,  none  is  in 
court  at  the  time  the  petition  and  affidavit  and  bond  are  filed. 

It  is  true  that  the  purpose  of  the  suit  is  not  only  to  obtain 
judgment  against  the  debtor,  but  to  render  the  execution  of  it 
certain  by  the  immediate  arrest  of  property,  and  the  immediate 
creation  of  a  hypothetical  lien  upon  it,  so  that  it  may  be  conserved 
for  the  purpose  of  final  execution;  and  it  is  true  "that  the  peti- 
tion contains  a  prayer  for  a  writ  to  effect  this  object,  and  that 
the  accompanying  affidavit  and  bond  are  with  reference  to  the 
contemplated  seizure  of  a  sufficient  quantity  of  the  debtor's 
property  to  secure  the  debt;  but  this  purpose  and  tliese  inci- 


6  THE    REMEDY     OUTLINED. 

dents   do  not  affect  tlie  form  of  the  proceeding  as  a  personal 
action. 

If,  notwithstanding  such  purpose  and  incidents,  nothing  is 
really  attached,  but  the  defendant  is  served  or  appears,  t])e 
suit  jet  liolds  good  against  him,  as  an  action  simply  personal* 
without  any  alteration  of  the  pleadings.  The  creditor  may  go 
on  and  press  his  claim  to  judgment,  and  may  execute  whatever 
he  may  thereafter  find.  In  such  case,  the  suit  is  personal  in 
both  form  and  effect. 

If  the  defendant  is  served,  or  appears  without  service,  and 
something  is  attached  pursuant  to  the  prayer  of  the  petition, 
yet  not  enough  to  satisfy  the  demand;  or  if  sufficient  is  seized 
to  satisfy  the  demand  in  whole  or  in  part,  yet  the  attachment 
\^^\^^o\\Q^  pendente  Z/ife,  the  plaintiff  may  still  go  on  to  recover 
a  personal  judgment  against  the  defendant,  upon. his  pleadings 
as  at  first  instituted.  If  the  dissolution  of  the  attachment  is 
with  reference  to  only  a  part  of  what  had  been  attached,  leav- 
ino-  too  little  to  satisfy  the  judgment;  or  if  too  little  was 
attached,  under  the  writ,  to  meet  the  demand,  the  plaintiff, 
because  his  judgment  is  a  personal  one,  may  satisfy  it  out  of 
any  property  belonging  to  the  defendant,  liable  to  execution, 
just  as  though  there  had  been  no  attachment  and  no  attempt  at 
attachment,  as  in  any  other  personal  suit. 

Indeed,  whether  enough  is  attached  to  satisfy  the  judgment 
in  whole  or  in  part,  or  nothing  whatever  is  attached,  the  right 
of  the  plaintiff  to  satisfy  his  judgment  out  of  any  property 
subject  to  execution  remains  precisely  the  same;  showing  that, 
in  either  event,  the  judgment  is  personal, — the  result  of  an  action 
personal  in  form;  and,  in  this  respect,  personal  in  character. 
It  must  be  remarked,  however,  that  when  nothing  is  attached 
and  the  judguient  is  only  personal  in  character,  the  proceeding 
is  not  an  attachment  suit,  (notwithstanding  the  prayer,  the 
affidavit,  the  bond  and  the  writ,)  but  merely  an  ordinary  action. 
The /brm  of  the  suit  is  personal  even  when  the  debtor  is  not 
reached  by  process  and  only  his  attached  property  is  brouglit 
into  court  pursuant  to  the  prayer  of  the  petition.  The  debtor, 
merely  notified  by  publication,  and  neglecting  to  make  appear- 
ance, is  not  a  party  defendant;  but  the  form  of  tlie  plaintiffs 


SUIT  AGAINST  PKOPERTY  IN  EFFECT  7 

pleadings  remains  unaltered,  and  the  suit  goes  on  apparently 
against  the  debtor;  evidence  is  offered  as  against  him,  and  even 
the  judgment  is  nominally  a  personal  one. 

There  is  no  difference  whatever,  in  the  form  of  the  atta^.h- 
ment  suit,  whether  the  proceeding  be  in  effect  a  personal  one  or 
not.  The  form  is  always  that  of  a  personal  action.  The  true 
character  of  the  suit  mnst  be  found  by  looking  below  the  sur- 
face. Other  actions  are  judged  by  the  pleadings:  this  is  some- 
what exceptional.  It  acquires  its  real  character  after  the 
plaintiff's  initial  pleadings  have  been  drawn  and  filed.  AVhether 
or  not  something  shall  be  attached,  subjected  to  a  lien,  a^id 
finally  executed,  in  enforcement  of  such  lien,  must  determine 
the  quality  of  the  action;  and  the  plaintiff  cannot  foresee  the 
result  when  he  files  his  suit.  AVhen  the  result  becomes  known, 
he  is  not  required  by  the  statutes  to  make  his  original  pleading 
conform  to  the  new  state  of  things.  It  remains  as  before. 
The  true  character  of  the  attachment  suit  appears  not  from  the 
form  but  from  the  effect  of  the  proceeding. 

Sec.  3.    The  Suit  Against  Property  in  Eflfect. 

The  suit  is  not,  in  effect,  a  personal  action,  when  property 
is  attached  yet  the  debtor  is  not  served  with  process  and 
makes  no  appearance. 

The  court  has  no  jurisdiction  over  the  debtor  as  a  party  when 
he  has  been  merely  notified  by  publication  and  has  not  heeded 
the  notice.  It  has  jurisdiction  over  the  property  brought  into 
court  and  over  that  only.  The  decree  rendered  in  attachment 
suits  of  this  sort  is  formally  against  the  debtor  as  a  personal 
defendant,  but  it  can  be  executed  against  the  attached  prcjperty 
only;  it  can  be  executed  only  so  far  as  that  particular  property 
is  capable  of  satisfying  it.  The  court  cannot  condemn  the 
debtor  personally  even  for  the  costs  of  suit. 

It  often  occurs  that  the  judgment  formally  rendered,  as  if 
against  the  defendant,  is  greater  in  amount  than  the  attached 
property  proves  to  be  worth;  and  the  circumstance  that  the 
excess  is  uncollectable  as  a  personal  judgment  against  the  debtor, 
(however  much  unattached  property  he  may  have  witliin  the 
jurisdiction,)  shows  conclusively  that  the  judgment  bears  only 


8  THE    REMEDY    OUTLINED. 

against  the  property  in  court,  and  that  so  far  as  it  exceeds  in 
amount  the  value  of  the  property,  it  is  coram  non  judice  and 
absolutely  void.  That  such  an  action  is  not  i-eally  personal, 
appears  from  the  consideration  that,  if  so,  the  court  would  have 
no  jurisdiction.  That  such  an  action  is  really  against  property, 
appears  from  the  reflection  that  only  the  pro])erty  is  in  court, 
and  the  jurisdiction  is  necessarily  confined  to  it. 

The  suit  is  so  exclusively  a  property  action,  when  there  is  no 
personal  defendant,  that  the  record  of  the  case  cannot  be  ad- 
duced in  evidence  against  the  debtor  in  any  other  cause  pend- 
ing against  hiin,  though  it  may  be  against  the  same  property  in 
any  competing  attachment  suit  pending  against  it.  Indeed, 
w^hen  there  is  no  personal  defendant,  the  very  existence  of  any 
suit  at  all  depends  upon  the  bringing  of  property  into  court. 
Though  the  petition  has  been  filed  with  a  prayer  for  the  attach- 
ment of  any  property  of  the  debtor  that  may  be  found ;  though 
the  affidavit  and  bond  have  been  filed,  and  the  writ  duly  issued, 
if  the  sheriff  makes  return  that  no  property  has  been  found,  the 
suit  at  once  abates;  or,  to  speak  accurately,  everything  already 
done  is  nugatory,  and  there  has  really  been  no  suit  from  the 
first. 

From  these  considerations  it  has  been  definitely  decided  that 
if  property  is  attached  yet  the  debtor-owner  is  not  summoned 
and  does  not  come  into  court,  the  only  effect  of  the  attachment 
proceeding  is  to  subject  the  property  to  the  payment  of  the 
creditor's  demand,  after  compliance  with  statutory  requisites. i 

The  judgment  is  nominally  against  the  defendant  named 
in  the  petition  and  affidavit,  with  privilege  on  the  property, 

1  Cooley's  Const.  Limitations,  404;  v.  Woodworth,  5  Johns.  (N.  Y.)  37; 

Penuoyer  v.  Nefi",   95  U.  S.  731,  734 ;  Matter  of  Faulkner,  4  Hill,  598 ;  Fitz- 

St.  Clair  v.  Cox,  lOG  U.  S.  350 ;  Cooper  simmons  v.  Marks,66  Barb.  333 ;  F'Tce 

ii.Eeynolds,  10  Wall.  308;  Harris  v.  v.  Gower,  23  How.  Pr.   294;  Fisher 

Hardeman,  14  How.  (U.  S.)  334,  340;  v.  Lane,  3  Wils.   297;  Coleman's  Ap- 

Fitzpatrick  v.  Flannagan,  lOG  U.  S.  peal,  75  Pa.  St.  441;  Jackson  «.  Bank 

648;  PancoastB.   Washington,   5  Cr.  of  the  United  States,   10   Pa.  St.  61; 

(C.  C.)  507;  Westervelt  v.  Lewis  &  Phelps?;.  Holker,    1  Dall.  (Pa.)  261; 

Tooker,  2  McLean,  511, 514 ;  Robinson  Fitch  v.  Ross,  4  S.  &  R.  557 ;  Downer 

V.  Nat.  B'k,  81  N.  Y.  393;  McKinney  v.  Shaw,  2  Fos.  277  ;  Miller  v.   Diin- 

V.   Collins,  88   N.   Y.  216;   Jones  «.  gan,     36     N.    J.    L.    21;     Field    ». 

Gresham,  6  Blackf.  291;  Kilbourne  Dortch,     34     Ark.    399;     Myers     v. 


SUIT    AGAINST    PKOrERTY    IN   EFFECT.  9 

but  tliat  it  is  not  rcallj  so  appears  from  tlie  fact  al)ove 
stated  that  it  cannot  be  executed  against  any  other  property  of 
his  than  that  vvliich  was  the  subject  of  the  attachment. 

These  principles  are  well  settled  and  universally  acknowl- 
edged, yet  some  liave  failed  to  deduce  tiierefrom  the  inevi- 
table conclusiutt  that  the  attachment  proceeding  is  not,  in 
itself,  a  personal  action;  that  it  does  not,  and,  in  the  nature  of 
things,  cannot  render  the  unsummoned  and  non-appearing  debtor 
a  party  defendant.  The  cases  which  every  lawyer  encounters 
in  his  investigations,  in  which  the  act  of  attaching  is  mentioned 
as  liaving  in  itself  the  effect  of  making  the  defendant  a  personal 
party  in  court  in  the  absence  of  summons  or  personal  appear- 
ance, may  be  properly  noticed  hereafter.  It  has  been  said  that 
if  property  is  attached  and  publication  made,  the  defendant  is 
thereby  brought  into  court  for  all  purposes  except  the  rendition 
of  a  j)ersonal  judgment  against  him.  This  is  self-contradictory; 
for,  if  not  in  court  so  as  to  be  liable  to  a  personal  judgment, 
he  cannot  be  there  for  any  purpose  whatever,  unless  he  has 
made  a  special  appearance.  If,  undei'  such  circumstances,  judg- 
ment can  be  rendered  only  in  effect  against  tlie  property  at- 
tached, (which  is  settled  law,)  for  what  conceivable  purpose 
may  the  unserved  and  non-appearing  debtor  be  deemed  in  court 
by  virtue  of  the  publication ?i 

Smith,  29  Ohio  St.  125;  Egan  v.  Thompson,  50  Irl.  330;  Rowley  v. 
Liunsden,  2  Disnoy,  (O.)  IGS;  Wells  Berrian,  12  111.  198,  202;  Banta  v. 
^).  Detroit,  2  Doug.  (Mich.)  77,  79;  Wood,  32  Iowa,  469;  Dooliille  v. 
Greeuvault  v.  F.  &  M.  Bauk,  Id.  498,  Shelton,  1  Greene,  (la.)  272;  Wilkie 
508;  Buckley -0.  Lowrj^  2  Mich.  418;  «.  Jones,  1  Morr.  (Iowa,)  97;  May- 
Matthews  V.  Deusmore,  43  Mich.  lield  ».  Bennett,  48  Iowa,  194;  Shir- 
461;  Van  Norman  v.  Judge  of  Jack-  ley  v.  Byrnes,  34  Tex.  625;  Greene, 
son  Circuit,  45  Id.  204;  Bower  v.  Hill,  4  Tex.  465;  Hunt  v.  Norris,  3 
Tow^n,  12  Mich.  233;  Woolkins  v.  Martin,  (La.)  527.  Epstein  v.  Sa- 
Haid,  49  Mich.  299;  Cliamberlain  v.  lorgne,  6  Mo.  App.  352.  (See  Mosher 
Faris,  1  Mo.  517;  Massey  v.  Scott,  49  v.  Bartholow,  Id.  598.) 
Mo.  278;  Erwin  v.  Heath,  50  Miss.  ^An  isolated  paragraph  in  King  ■». 
795.  Myers  v.  Farrell,  47  Miss.  281 ;  Vance,  46  lud.  246,  wiiich  is  com- 
Bates  V.  Crow,  57  Miss.  676,  678;  pletely  overborne  by  the  body  of  the 
People  «.  Cameron,  7  111.  468;  Cly-  decision,  seems  to  have  led  to  error 
more  B.  Williams,  77  111.  618;  Hob-  in  this  respect.  In  Cheatliam  w.  Trot- 
son  V.  Emporium  Real  Estate  and  ter,  Peck,  198,  it  is  said  tliat  if 
Manf.  Co.  42    111.   306;    Conwell  v.  attachment  is  levied  on  the  property 


10 


THE    REMEDY    OUTLINED. 


Perhaps  tlie  proceeding  by  wliicli  the  debtor's  property  or  credit 
is  attached  while  in  the  hands  of  a  third  person  is  not  so  generally 
conceded  to  be  an  action  against  property  as  when  the  debtor's 
property  is  found  in  his  own  possession  and  attached.  The 
only  difference  between  the  two,  however,  is  that  in  the  latter 
case  the  property  comes  directly  under  the  control  of  the  court 
through  its  executive  officer  and  directly  into  the  possession  of 
that  officer;  while,  in  the  former,  the  court's  control  is  through 
the  garnishee  and  its  constructive  possession  is  that  of  the  garni- 
shee. ^Vhen  property  is  subjected  to  garnishment  it  seems 
plain  enough  that  the  court  has  constructive  custody  though  the 
garnishee  holds,  just  as  it  has  such  custody  when  a  keeper  or 
receiptor  is  in  charge,  for  the  sheriff,  of  property  attached  in 
the  debtor's  own  hands.  But  when  a  credit  of  the  defendant's 
is  attached  in  the  garnishee's  hands,  is  the  court's  constructive 
possession  as  clear?  Such  seizure  seems  like  that  of  any  incor- 
poreal thing,  not  susceptible  of  manipulation,  attachal)le  only  by 
giving  notice  to  the  person  in  possession.  In  such  case  there 
is  no  difficulty,  in  an  acknowledged  proceeding  m  rem,  in  treat- 
ing the  true  j)Ossession  and  control  as  being  in  the  court  through 
its  officer,  after  this  method  of  seizure  has  been  employed. 
Constructive  seizure  is  as  good  as  the  actual  taking  of  property, 
if  it  is  the  only  kind  possible.  This  is  true  in  admiralty  and 
all  other  proceedings  against  things,  whether  with  general  or 
limited  notice  and  effect.  Why  should  it  not  hold  good  when  a 
debt  due  a  defendant  is  attached?  IlTotice  is  given  to  the  garni- 
shee, and  he  becomes  at  once  so  far  the  keeper  of  the  incor- 
poreal thing,  for  the  court,  that  he  would  be  amenable  for  con- 
tempt of  court  should  he  not  hold  the  res  till  judgment  for 
or  against    it.     The    proceeding    is  against   such    incorporeal 

of  a  debtor,  he  is  before    the   court  confined  to    the   property   attached, 

and  judgment  may  be  taken  against  King  v.  Vance,  46  Ind.  246;  Miller  v. 

him  if  he  does  not  appear.     See  Ter-  Dungan,  36  N.  J.   L.  21 ;  Clymore  v. 

rill  v.  Rogers,  3  Hayvv.  (Tenn.)  203;  Williams,  77  III.  618;  Bates  ?;.  Crow, 

Mitchell  t).  Sutherland,   74   Me.  100.  57  Miss.    676,    678;  Fitzsimmons  v. 

But  it  is  settled   that  nothing  more  Marks,    66    Barb."  333;     Kilburn  v. 

than  a  nominal  personal  judgment  Woodworth,  5  Johns.  37;  Epsteins, 

can  be  rendered  under  such  circum-  Salorgne,  6  Mo.   App.   352;  Banta  «;. 

sUiuces,  and   that    the   judgment  is  Wood,  32  Iowa,  469. 


SUIT    AGAINST    mOPEKTY    IN    EFFECT.  11 

property,  and  not  against  the  unsummoned  and  non-appearing 
defendant. 

True,  the  garnishee  is  personally  served,  or,  at  any  rate,  must 
be  legally  served  in  some  way,  before  the  garnishment  can  be 
laid.  Does  this  remove  the  case  from  the  principles  here- 
tofore suggested  applicable  to  attachments  in  the  hands  of  the 
debtor  himself?  And  does  it  make  garnishment  a  personal 
proceeding? 

Personal  it  doubtless  is  so  far  as  the  garnishee  is  concerned. 
He  is  brought  into  court;  he  must  personally  answer;  and  when 
he  has  denied  holding  property  or  owing  debt  to  the  defendant, 
and  he  is,  for  this,  or  any  other  reason,  drawn  into  litigation, 
the  proceeding  is  certainly  personal  and  not  at  all  against  prop- 
erty. There  may  be  an  auxiliary  side  suit  between  the  attach- 
ing plaintiff  and  the  garnishee,  wholly  personal  in  character. 
Usually,  any  contest  between  the  two  occurs  in  the  main  case, 
but  is  subsidiary  to  it,  and  always  personal  in  character. 

The  case  to  which  such  a  contest  is  auxiliary;  the  case  of 
the  attaching  creditor  against  what  is  subjected  to  garnishment, 
is  impersonal  nevertheless.  It  is  subject  to  all  the  considera- 
tions heretofore  adduced  to  show  that  any  attachment  suit  is 
such. 

Suppose  the  debtor  has  made  an  appearance;  the  garnishee 
has  answered  that  he  owes  that  debtor  a  certain  sum:  what  is 
the  situation?  There  is  a  personal  action  against  the  debtor; 
there  is  a  property  action  against  the  attached  credit, 
which  action  is  ancillary  to  the  personal  one.  And  now, 
should  any  contest  arise  between  the  plaintiff  and  the  garnishee, 
such  contest  would  be  a  proceeding  subordinate  to  both  the 
main  and  the  ancillary  action  above  mentioned.  Such  a  contest 
might  arise  even  after  the  garnishee  had  answered  satisfactorily 
to  the  plaintiff;  for  he  might  subsequently  show  a  disposition  to 
favor  the  defendant  in  some  way  so  as  to  render  it  necessary  for 
the  plaintiff  to  invoke  the  court  against  him;  or  he  might  do, 
or  be  about  to  do  some  other  act  that  would  imperil  the  plaintiff's 
chance  of  making  the  money  upon  his  anticij^ated  judgment, 
and  render  it  advisable,  in  his  opinion,  to  take  some  judicial 
means  of  securing  his  rights. 


12  THE    KEMEDY    OUTLINED. 

"When  tlie  defendant  is  not  in  court  and  not  summoned,  but 
is  notilied  by  publication,  final  judgment  cannot  be  rendered 
against  bim  so  as  to  be  enforceable  against  any  property  of  bis, 
in  a  case  of  garnisbment  any  more  tban  in  a  case  of  ordinary 
attacbment;  and  tbis  conclusively  proves  tbat  tlie  proceeding  is 
not  a  personal  action.  Tlie  same  rule  witb  regard  to  the  offer- 
ing of  tbe  record  in  evidence  prevails  witb  respect  to  judg- 
ments in  garnisbment  cases  as  in  otlier  attacbment  cases. 

It  is  held  in  Missouri  tbat  "garnisbment  is  a  proceeding 
qua&i  in  rem.^  and  two  services  are  required:  one  to  bring  the 
garnishee  into  court  and  another  to  bring  tbe  property  in:  with- 
out these,  the  court  has  no  jurisdiction."!  And  in  Mississippi, 
when  debt  or  property  is  attached  in  tbe  hands  of  a  third  per- 
son by  process  of  garnisbment,  and  personal  service  is  made 
upon  tbe  principal  defendant,  tbe  two  proceedings  are  said  to  be 
two  actions;  tbe  Supreme  Court  of  that  State  said  tbat  there 
may  be  a  blending  of  the  two  actions,  and  that  "one  may  suc- 
ceed—the other,  faib"3 

See.  4.    Ancillary  Proceeding. 

When  tbe  attachment  proceeding  is  ancillary  to  a  personal 
suit,  it  is  still,  in  effect,  against  property. 

When  both  the  debtor  and  bis  property  are  in  court,  tbe  suit 
is  usually  deemed  a  personal  one.  Tbe  presence  of  tbe  defend- 
ant, or  bis  legal  citation  into  court,  seems  to  give  the  whole  pro- 
ceeding a  personal  cast;  and,  in  such  ease,  it  is  common  to  treat 
it  as  a  personal  action.  The  courts,  without  having  their  atten- 
tion specially  called  to  tbe  "added  incident,  tbat  the  property 
attached  remains  liable,  under  the  control  of  the  court,  to 
answer  any  demand  ■which  may  be  established  against  the 
defendant,"  not  unfrequently  speak  of  such  attacbment  suits  as 
personal  actions,  though  without  denying  that,  so  far  as  the 
judgment  bears  directly  upon  property,  such  suits  may  be  some- 
thing more.  The  Supreme  Court  of  the  United  States  said, 
when  introducing  tbe  words  above  quoted:     "If  tbe  defendant 

'  Epstein  «.  Salorgne,   G   Mo.  App.  »  Erwiu  -o.  Heath,  50  Miss.  795. 

353. 


ANCILLARY    PROCEEDING.  13 

appears,  the  cause  becomes  mainly  a  suit  in  personam  *  *  "^."^ 
It  becomes  "  mainly"  but  not  wliollj  such.  * 

It  is  because  of  the  "added  incident"  that  the  attachment 
suit,  under  such  circumstances,  considered  as  a  wliole,  has  been 
said  to  be  quasiin  7'e7n.  This  term  has  been  frequently  applied, 
in  a  general  way,  to  all  suits  personal  in  form,  but  in  effect  against 
property  when  the  defendant  is  in  court;  and  also  when  the  judg- 
ment sought  is  personal  but  the  proceedings  bear  upon  a  thing  so 
as  to  be  seemingly  directed  against  it.  There  is  no  objection  to 
such  applications  of  this  term,  or  to  its  use  in  designating 
attachment  suits  of  any  kind,  when  it  answers  some  general 
purpose  in  view  at  the  time.  There  can  be  no  just  criticism  of 
its  use  when  it  is  applied  to  designate  such  a  suit  as  a  wdiole, 
without  atttempting  any  differentiation  when  "the  cause  is 
mainly  a  suit  in  personam^  2 

Perfect  accuracy,  however,  is  important  in  distinguishing 
between  the  major  and  the  minor  proceedings  in  such  a  suit; 
it  is,  indeed,  necessary  to  the  complete  presentation  of  the  sub- 
ject of  attachment.  When  b^th  the  debtor  and  his  property  are 
in  court,  the  proceeding  against  the  property  is  ancillary  to  the 
personal  action. ^  The  suit  may  be  prosecuted  to  judgment 
against  the  debtor,  independently  of  the  ancillary  proceeding. * 
The  attachment  may  l)e  dissolved  and  yet  the  personal  judgment 
hold  gK)od.5  On  the  other  hand,  though  the  attachment  proceed- 
ing would  abate  if  the  personal  suit  were  dismissed,  (owing  to  its 
auxiliary  and  dependent  character,)  it  retains,  while  it  exists,  all 
the  characteristics  which  make  it  a  proceeding  in  rem.  The 
sole  purpose  of  all  attachments  of  property  is  the  creation  and 
enforcement  of  a  lien,  whether  the  debtor  is  in  court  or  not. 
The  affidavit,  the  bond,  and  the  writ  have  the  same  relation  to 
the  property  attached  when  the  debtor  is  present  as  when  he  is 
absent.      So     far    as    the    validity    of  the    proceeding  against 

»  Cooper  V.  Reynolcls,  10  Wall.  308.  S.  60O. 

2McComb  V.  Allen,  82  N.  Y.  114;  ^  j>ui-,,ii.yn^  ^    Denn,  25  Kan.  430; 

Parsons  v.  Paine,  20  Ark.  124;  Max-  Bales  v.  Crow,  57  Miss.  670;  Parker 

well  V.  Stewart,  22  Wall.  77.  v.  Brady,  56  Ga.  372;  Erwin  v.  lieatii, 

^Bivens  V.  Mathews,  7  Bax.  256.  50  Miss.  795;  Bayersdorfer  «.  Hai't, 

♦  Fitzpatrick  v.  Flaunegan,  106  U.  12  Pliila.  192. 


14:  THE    REMEDY    OUTLINED. 

attaclied  property  is  concerned,  it  makes  no  difference  whetlier 
tl'e  debtor  is  personally  snmnioned  or  constructively  notified; 
whether  he  responds  to  service  or  notice  or  does  not.  It  does 
make  all  the  difi'erence  between  attachments  when  the  question 
is  whether  any  given  proceeding  against  property  is  principal  or 
ancillary,  but  none  as  to  its  character,  whether  in  ron  ov  not. 
The  proceeding  is  not  the  less  against  a  thing  because  it  is 
ancillary.  It  must  be  concluded  that  an  attachment  suit, 
whether  it  is  ancillary  or  not;  whether  the  debtor  responds  or 
not,  is  in  effect  always  in  r<^in,  though  in  form  always  in 
2Jerso)iam. 

It  is  essential,  whether  the  attachment  be  principal  or 
ancillary,  that  there  be  seizure  and  detention  of  property,  juris- 
diction of  the  court  over  it  as  a  thing  and  judgment  perfecting 
the  hypothetical  lien  or  asserted  jus  ad  rem:  requisites  not  at 
all  appertaining  to  a  personal  suit. 

See.  5.    The  Suit  Limited  to  the  Debtor's  Property, 

It  is  not  a  proceeding  in  rem  with  general  notice  and  effect, 
but  with  limited  notice  and  effect. 

Notice  being  limited  to  the  debtor,  and  the  attached  property 
being  proceeded  against  only  as  his,  and  the  judgment  being 
ao-ainst  it  only  as  such,  the  debtor  and  his  privies  are  the 
only  persons  concluded  by  the  decree.  All  who  are  parties 
to  the  action  are  bound,  but  only  the  rights  of  property  of  the 
debtor  and  his  privies,  in  the  attached  property  which  is  con- 
demned to  pay,  and  is  sold  under  execution,  are  affected  by  the 
proceeding  and  decree. 

Because  proceedings  with  general  notice,  to  vindicate  a  jus 
in  re,  are  conclusive  upon  all  the  world,  while  attachment 
suits  are  not,  some  have  denied  that  the  latter  are  in 
rem.  Tlie  right  inference  is  that  they  are  not  of  that  class  of 
property  actions  which  are,  in  their  judgments,  universally 
obligatory.  They  are  unlike  actions  to  declare  the  status  of 
offentling  things  and  to  pronounce  their  forfeiture;  and  those 
to  adjudge  upon  the  status  of  enemy  property,  (captured  as 
naval  prize  or  seized  upon  land,)  to  pronounce  its  confiscation; 
and    those  to  pronounce    the  forfeiture    of  an  indebted  thing 


LIMITED    TO    THE    DEBTOu's    PROPERTY.  15 

given  in  pledge  and  not  redeemed.  They  cannot  be  classified 
Avith  any  of  those  proceedings,  all  of  which  are  in  vindication 
of  rights  to  things  and  not  merely  rights  in  things. 

The  decisions  which  deny  that  attachment  suits  are  against 
things  show,  in  their  reasoning,  that  the  courts  have  merely 
meant  that  such  suits  do  not  bfelong  to  the  class  mentioned. 

There  is  another  class  to  which  they  do  belong:  proceedings 
with  limited  notice  and  effect.  Actions  against  property  which 
are  not  irrespective  of  its  owner;  which  are  not  attended  by 
notice  to  all  the  world  so  as  to  render  all  persons  liable  to  be 
concludedby  the  judgment;  which  are  not  based  upon  a  seizure 
prior  to  the  suit;  in  which  the  res  is  not  impleaded;  but  whicli 
are  yet,  in  effect,  proceedings  against  property,  constitute  a 
separate  class  to  which  attachment  suits  rightfully  belong. 

When  property  is  proceeded  against  as  an  indebted  thing,  the 
proceeding  is  always  in  vindication  of  a  lien  except  when 
against  a  forfeited  pledge.  Attachment  suits  are  such;  for  the 
plaintiff  proceeds  from  the  first  as  if  he  had  a  lien,  and  his 
assumption  is  sustained  if  he  prosecutes  his  case  to  judgment. 

But  actions  against  things,  brought  upon  liens,  are  not  all  of 
the  class  designated  above  as  proceedings  in  rem  with  limited 
notice  and  effect.  All  are  against  indebted  property,  and  all 
seek  to  have  the  property  condemned  to  pay  debt — not  to  have 
the  property  itself  forfeited;  but  in  some  of  them,  (those  in 
vindication  of  admiralty  liens,  for  instance,)  the  judgments  are 
of  universal  obligation;  while  in  others,  (including  attachment 
suits,)  the  judgments  are  obligatory  only  upon  the  debtor  and 
his  privies.  The  former  are  conducted  irrespective  of  the 
owners  of  the  things  selzod;  the  latter  only  with  reference  to 
the  interest  of  the  debtor;  in  the  former  the  notice  or  moni- 
tion is  general:  in  the  latter  it  is  limited  to  the  debtor;  in  the 
former,  all  persons  interested  must  appear  and  assert  their 
rights  or  they  will  be  forever  concluded  by  the  decree  against 
the  property:  in  the  latter,  they  need  not  appear,  (except  the 
notified  debtor,)  and  they  cannot  be  defaulted,  nor  affected  by  a 
final  decree  subjecting  the  property  to  pay. 

Both  classes  are  against  things — against  things  indebted;  but 
the-  difference  of  result  in  the  two,  warrant  and  require  their 


16  THE    REMEDY    OUTLINPJD. 

distinction  as  Proceedings  with  general  notice  and  effect^  and 
Proceedings  with  limited  notice  and  effect. 

If  the  universality  of  tlie  judgment-obligation  were  tlie 
criterion  by  which  to  judge  whetlier  a  suit  is  against  a  tiling  or 
not,  all  actions  belonging  to  the  second  class  mentioned,  includ- 
incr  attachment  suits,  would  be  ruled  out.  It  is  certain  that  a 
judgment  in  an  attachment  case  is  not  conclusive  against  all 
the  world.  It  is  certain  that  it  is  limited  in  its  conclusiveness 
to  the  debtor-owner  and  his  privies. 

Is  the  universality  of  effect  the  true  criterion  by  which  to 
determine  whetlier  a  proceeding  is  against  a  thing?  It  lias  often 
been  made  the  criterion,  because  courts  have  had  in  mind  pro- 
ceedings with  general  notice,  and  have  thought  that  all  suits 
must  conform  to  them  in  the  feature  of  universal  conclusiveness 
to  be  entitled  to  the  designation  of  proceedings  against  things. 
And,  where  this  feature  has  appeared,  they  have  accepted  the 
proceeding  as  one  against  a  thing  even  when  it  has  been  to 
declare  personal  status.  In  illustration,  may  be  mentioned 
the  judicial  recognition  or  appointment  of  an  administrator, 
executor  or  guardian. i 

Orders  making  such  appointments  have  some  reference  to 
property,  it  is  true;  but  they  do  not  differ  from  like  orders  in 
which  no  property  is  concerned,  such  as  those  fixing  the  status 
of  a  pauper,  2  emancipating  a  minor,  naturalizing  a  foreigner, ^ 
etc.,  which,  by  the  same  criterion,  have  been  also  held  to  be  in 
rem,  though  no  property  whatever  is  necessarily  involved. 

There  is  a  class  of  orders  which,  by  this  criterion,  have  been 
put  with  proceedings  against  things,  though  the  orders  have 
but  a  slight  relation  to  property,  and  cannot  properly  be  said  to 
be  against  it;  such  as  those  discharging  a  bankrupt,^  settling  the 
accounts  of  an  administrator  or  executor,  ^  granting  letters  of 

'  Farrar  v.  Olmstead,  24  Vt.  123.  *  Livermore  ».  Swasey,  7  Mass.  213; 

2Regina  v.  Hartington,  4  Ellis  &  In  re  Bellows,  3  Story,  128;  Very  v. 

Bl.  780 ;  Regiiia  y.  Wye,  Adolpb  &  E.  McIIenry,  29  Me.  206. 

761.  5  Tibbetts  v.  Tilton,  4  Foster,  120; 

3McCarthy».  Marsh,  ISeklon,  203;  Bryant  v.  Allen,^6  N.  H.  116;  Clark 

The  State  v.  Penny,  5  Eng.  621.  v.  Callaghan,  2  Watts,  259. 


LIMITED    TO    THE    DEBTOk's    rROPEETT.  17 

administration, 1  probating  wills, 2  etc.  Of  these,  and  many 
other  orders  and  proceedings,  the  most  that  can  be  said  is  that 
they  resemble  prv)ceediiu;'s  in  7'em  with  general  notice  in  the 
feature  of  universal  conclusiveziess;  and  this  is  all  that  the 
courts  have  meant  to  say.* 

While,  on  the  one  hand,  orders  fixing  the  status  of  persons 
have  thus  been  treated  as  proceedings  against  things  by  reason 
of  their  universal  obligation,  attachment  suits  have  been  denied 
that  cliaracter  because  binding  only  upon  parties  and  privies.^ 
The  universality  of  the  obligation  is  not  the  right  criterion,  as 
to  what  is  a  proceeding  in  rem.  The  test  question  is.  Are  the 
proceedings  against  a  thing?  They  may  be  so,  yet  the  judg- 
ment-result may  bear  only  on  the  thing  as  the  property  of  a 
specified  owner  and  be  conclusive  upon  only  him  and  his  privies. 
They  may  be  so,  and  the  judgment-result  may  bear  upon  the 
thing  irrespective  of  its  owner  or  owners,  and  be  conclusive 
upon  all  the  world.  In  the  latter  case,  there  is  a  proceeding  in 
rem  with  general  notice  and  effect.  In  the  other,  there  is  a 
proceeding  in  rem  with  limited  notice  and  effect. 

Certain  probate  proceedings  are  against  the  property  of  the 
decedent,  which  is  an  indebted  thing;  and  they  belong  to  the 
same  class  with  attachments,  since  condemnation  and  sale  follo^v 
limited  notice,  and  the  whole  world  is  not  concluded  by  the 

'  Lawrence  v.  Englesby,  24  Vt.  43 ;  Spragiie,  3  Gratt.  355 ;  Judson  v.  Lake, 

Stein  v.  Bennett,  24  Vt.  803;  Ryland  3  Day,  3.8. 

«j.  Green,  14  S.  &  M.  194.  *  Magee  v.  Beirne,  39  Pa.  St.  62: 

2  Woodruff  V.  Tajior,  20  Vt.  65.  "The  j  udgment  concludes  parties  and 

3  Ennis  «.  Smitli,  14  How.  400;  privies,  but  not  strangers.  It  is  not 
Dublin  V.  Chadburn,  IG  Mass.  433;  true  of  a  judgment  in  attacbment 
Laughton  v.  Atkins,  1  Pick.  535;  that  it  autliorizes  the  plaintifF  to  seize 
Osgood  B.  Breed,  12  Mass.  525 ;  Peters  a  third  party's  property  for  the  de- 
V.  Tlie  Warren  Ins.  Co.,  3  Sum.  389;  fendant's  debt.  In  2  Smith's  L.  C, 
Dickinson  v.  Hayes,  31  Ct.  417;  Am.  Ed.  p.  689,  ei  se(?.,  the  cases  on 
bhermer's  Appeal,  8  Wriglit,  396;  this  head  will  be  found  collected,  and 
Vauderford  v.  Van  Valkenberg,  2  their  result  stated  to  be  that,  properly 
Seld.  190 ;  HoUiday  v.  Ward,  7  Harris,  speaking,  proceedings  by  attachment 
485:  Lovett  «.  Matthews,  12  Id.  338;  are  not  in  r<3?w,  but  are  rather  pro- 
Shinn  v.  Holmes,  1  Casey,  142;  ceedings  against  the  interest  of  the 
Hodges  V.  Baneham,  8  Yerg.  186;  defendant  and  those  claiming  undel 
Box  ®.  Lawrence,  14  Tex.  345;  Her-  him  in  the  thing  attached."  And 
bert  V.  Hanrick,  16  Ala.  581 ;  Wills  v.  there  are  other  cases,  upon  this  and 

2 


18  THE    KEMEDY    OUTLINED. 

result.*  Neither  such  probate,  nor  ordiiuirj  attaclimeiit  pro- 
ceeding is  formally  against  property.  The  principal  suit  is  a 
personal  one,  when  the  defendant  is  served  with  process  in  an 
attachment  suit,  though  there  is  an  accompanying  ancillary  pro- 
ceeding against  property.  Nearly  all  ])robate  procedures  are 
in  personam,,  and  property  is  seized  and  sold  in  execution  of 
judgments  rendered  therein. 

Notwithstanding  the  position  of  those  who  make  universality 
of  judgment-obligation  the  criterion;  and  who,  by  that  test, 
seek  to  range  all  classes  of  property  actions  under  one  head,  it 
is  apparent  that  there  are  different  kinds  of  proceedings  against 
things  as  there  are  different  kinds  against  persons. 

It  is  definitely  decided  that  attachment  suits  are  i?i  rem,  by 
the  highest  tribunal  in  the  land,  followed  by  the  State  courts, 
as  liei-ein  before  shown;  but  the  right  classification  of  them, 
and  the  distinction  of  them  from  suits  of  the  same  general 
character  which  are  binding  upon  all  the  world,  seemed  abso- 
lutely necessary  at  the  very  outset  of  a  work  on  the  sul)ject  of 
Attachment.  Error  may  be  avoided  by  restricting  this  import- 
ant remedy  to  its  true  sphere;  and  questions  of  seizure,  notice, 

likereasons,  in  which  the  same  result  "without  any  direct  or  personal  ser- 
is  reached.  Eaton  t.  Peunywit,  25  vice  of  process,  and  are  sometimes" 
Ark.  144;  Walker  «.  Cottrell,  G  Bax.  described  as  proceedings  «/irtwi;  and 
257;  Ingle  v.  McCurry,  1  Heis.  28;  there  can  be  no  doubt  that  the  order 
Houston  -e.  McCluney,  8  W.  Va.  135.  or  decree  in  such  cases  will  be  con- 
^  Because  probate  decrees  against  elusive  as  regards  every  one  who 
things  are  not  res  adjudicata  quoad  claims  title  by  descent  from  the  an- 
omnes,  the  proceedings  have  been  ex-  cestor,  whether  he  is  or  is  not  actu- 
cludecl  from  classification  with  pro-  ally  before  the  court :  Benson  v. 
ceedings  in  rem,  being  tested  by  the  Cilly,  8  Ohio,  N.  S.  604.  But  the  sub- 
wrong  criterion  above  mentioned.  stantial  dilTerence  between  such  an 
In  Smith's  L.  C,  II.,  p.  091,  it  is  said :  order  and  a  true  judgment  in  rem  is, 
"The  proceedings  which  are  very  that  the  estoppel  is  limited  to  the 
generally  in  use  in  the  Probate  and  parties  and  privies,  and  will  not  be 
Orphans'  Courts  of  this  country,  for  binding  even  on  them,  unless  they 
the  sale  of  the  real  estate  of  an  had  actual  or  constructive  notice  in 
ancestor  for  the  payment  of  his  debts,  the  manner  prescribed  by  statute." 
or  for  the  purpose  of  facilitating  or  It  is  only  necessary  to  reply  that  no 
affecting  a  partition  or  distribution  proceeding  whatever  against  a  thing 
among  his  heirs,  are  comuKmly  in-  is  binding  without  notice  v/heu  that 
slituted   by  petition  or  publication,  is  a  statutory  requisition. 


LIMITED    TO    TilE    DEBTOIi's    PROPERTY.  19 

jurisdiction,  rank  of  competing  liens,  and  others,  will  be  thus 
greatly  simplified. 

The  attaclwient  suit,  though  always  personal  in  forin^  is,  or 
includes,  a  suit  in  rem  lo'dh  limited  notice  and  result. 

The  importance  of  .this  proposition  will  be  seen  us  the  whole 
subject  of  attachment  is  studied.  It  is  absolutely  iiecessarv 
to  the  clear  treatment  of  attachment  and  garnishment  that 
the  character  of  the  proceedings,  whether  personal  or  not, 
should  be  set  forth  at  the  outset.  The  statute  authorizations 
are  all  directed  to  property,  since  personal  suits  for  debt  could 
be  brought  without  such  special  statute  authorization.  Separat- 
incr  the  suit  for  debt,  brou<jclit  against  the  debtor,  from  the 
suit  to  create  a  lieu  brought  against  the  debtor's  property, 
the  latter  is  seen  to  be  not  personal  in  effect. 

The  tendency  is  towards  the  universal  recognition  of  the 
dual  character  of  actions  in   which  attachments  are  sued  out. 

The  Supreme  Court  of  Mississippi  says  that  every  attach- 
mene  suit  is  "virtually  two  suits:  one  in  rem  and  another  in 
'personam.  *  *  *  The  two  proceedings  now  progress  in  a 
great  degree  independently  of  each  other,"  that  is,  since  the 
adoption  of  the  statute  of  1878,  (Stat.  p.  193;)  and  now  the 
tiling  of  a  plea  to  the  merits  in  the  ])ersonal  suit  is  not  a 
waiver  of  a  plea  in  abatement  of  the  attachment  suit. ^  And 
it  adds  that  under  the  former  statute  the  rule  was  different  as 
to  such  pleas.  2  The  doctrine  has  long  been  recognized  in  that 
State,  (as  indeed  everywhere,)  that  the  personal  suit  may  be 
prosecuted  to  judgment,  though  the  attachment  suit  be  dis- 
missed. ^ 

In  that  State,  a  verdict  sustaining  an  attachincnt  is  separate 
from  one  on  the  merits  of  the  personal  suit,  and  the  respective 
judgments  following  may  be  separately  considered  on  error,  A 
judgment  on  a  plea  in  abatement  is  not  final  and  reviewable 

'  Bates  v.  Crow,  57  Miss.  676,  678.  son  v.  Hamer,  5  Id.  5i!5 ;    Lester  v. 

2  LewenthalH'.  Miss.  Mills,  55  Miss.  AVatkins,   41    Miss.   647;    Bishop   v. 
101.  Fennerty,   46    Id.   570;    Holman   v. 

3  Miller  »,  Ewing,  8  S.  &  M.  421;  Fisher,  49  Id.  473;   Erwin  «.  Heath, 
Harris  v.  Gwin,  10  Id.  563;  Jones  «.  50  Id.  795. 

Hunter,  4  How.  (Miss.)  312;  Hender- 


20  THE    REMEDY    OUTLINED. 

before  that  upon  the  merits  of  the  principal  cause,  hut  a  writ 
of  error  upon  the  hitter  takes  up  i)otliJ 

The  law  and  practice  are  general  that  the  personal  suit  may 
be  prosecuted  to  judi^inent  th(ni<^li  the  attachment  be  dissol'»'ed.2 
The  bench  and  the  bar  are  unanimous  on  the  doctrine  that  judg- 
ment binds  the  attached  prupert}'  only,  (and  binds  it  as  property 
of  the  defendant  oidy,)  when  the  defendant,  though  notified  by 
publication,  has  not  been  bronglit  into  court;  and  thus,  though 
all  would  not  agree  upon  terms,  all  admit  that  tlie  attacliment 
proceeding  is  against  property.  It  is  not  important  that  all 
should  concede  that  tlie  proceeding  is  in  rem  so  long  as  the  idea 
underlying  the  term  is  entertained;  but  it  is  of  great  import- 
ance that  those  who  apply  the  term  should  distinguish  between 
a  suit  against  a  thing  as  the  property  of  a  designated 
owner  with  notice  to  him  alone,  and  a  suit  airainst  a  thing;  irre- 
spective  of  personal  ownership.  In  an  attachment  suit,  the 
interest  of  the  defendant  is  the  r<?5. 

If  the  profession  insist  that  an  order  fixing  the  status  of  a 
person  is  in  rem^  error  need  not  necessarily  ensue,  j^rovided 
they  do  not  hold  universal  conclusiveness  to  be  the  criterion; 
but  they  can  hardly  confound  things  guilty  and  things  hostile 
with  things  indebted,  and  the  absolute  right  or  jns  in  re  with 
the  relative  right  or  lien,  and  proceedings  under  general  notice 
with  those  under  limited,  without  consequent  error. 

See.  6.    Absence  of  a  Pre-existing  Lien. 
The  jus  ad  rem,  or  right  in   the  property   to  the  amount 

J  Fitzpalrick  v.  Flannagan,  106  TJ.  143;  Myers®.  Smith,  29  Ohio  St.  125; 

S.  64S,  GGO,  in  which  the   personal  Eddy  «.  Moore,  23  Kan.  113;  Hill  «. 

judgment    was    aflirmed,    but     that  Harding,  93  111.  77;  Phillips?;.  Hines, 

against  the   property   reversed,  and  33   Miss.  1G3;  Irvin  v.   Howard,  37 

the   case  remanded.  Ga.   18;  Shirley  v.  Byrnes,   34  Tex. 

2  Hills  ».    Moore,    40    Mich.   210;  625;  Love  ».  Voorhies,  13  La.  Ann. 

Epstein  v.  Salorgue,  6  Mo.  App.  352;  549;  Gillispiei).  Clark,  1  Tenn.  2.  And 

Wolf  v.  Styx,   99  U.  S.   1;    Brenner  the  duality  of  the  attachment  suit  is 

Trucks   &  Co.  -y.  Moyer,  98  Pa.  St.  recognized :     Bundrem  v.  Denn,  25 

274;  Buckingham  v.  Swezy,  61  How.  Kan.  430;  Grubbs  v.  Colter,  7   Bax. 

Pr.  2G6;  McCombs  v.  Alien,  83  N.  Y.  433;  Biveus  v.  Matthews,  7   Id.  25G; 

114;  Scanlon  ■».    O'Brien,   21   Minn.  Walker  v.  Cottrell,  G  Bax.  257,  and 

434;  Dierolf  v.  Wiuterfield,  24  Wis.  many  others. 


ABSEXCE    OF    A    PRE-EXISTING    LIEN.  21 

of  the  debt,  or  licii  resting  upon  property  susceptible  of  being 
satislied  out  of  it,  is  absolutely  essential  to  an  action  against 
the  property  as  a  thing  indel>ted.  Such  right  ordinarily  must 
exist  before  the  action  can  be  instituted,  because  the  very  object 
of  the  suit  is  to  vindicate  the  right.  The  attachment  snit  is 
anomalous:  for  its  ofiice  is  b'oth  to  create  and  enforce  a  lien. 
The  creditor,  however,  proceeds  on  the  assumption  tliat  the  ji/s 
ad  rem  already  exists;  he  makes  ex  ■parte  proof  of  a  state  of 
facts  which  entitles  him  to  a  lien  under  the  law  if  his  sworn 
allegations  be  true.  Though  entitled  to  it  under  such  circum- 
stances, the  right  is  not  specific  until  some  property  or  credit 
of  the  debtor  has  been  attached:  then  the  creditor  has  a  jus 
ad  rem.'^ 

This  incipient,  specific  lien  or  right  is  hypothetical:  it  de- 
pends upon  being  perfected  by  a  judgment  retroactive  to  the 
time  of  its  inception. 3  If  thus  matured,  it  must  be  deemed  a 
complete  incumbrance  upon  the  attached  property  from  the 
date  of  the  levy,  to  be  marshalled  as  superior  in  rank  to  all 
subsequent  liens,  mortgages,  assignments  and  sales.  If  not 
thus  matured,  it  must  be  treated  as  nothing;  the  debt  sued 
upon,  though  enforceable  by  judgment,  has  no  relation  to  the 
property  illegally  attached;  and  the  creditor  is  responsible  in 

1  Smith  V.  Bradstreet,  16  Pick.  264;  Reading,  74   Mo.   309;   Chandler  v. 

V^an  Loan  v.  Kline,   10  Johns.   129;  Dyer,  37  Vt.  345;  Metts  v.  Ins.  Co.  17 

Bates  V.  Plousky,  28  Plun.  113;  Scar-  S.  C.  120;  Goore  v.   McDaniel,  1  Mc- 

borough   V.    Malone,    67    Ala.    570;  Cord,  (S.  C.)  480;  Carter  b.  Champion, 

Hurt  V.  Redd,    64   Id.   85;  Carey  v.  8  Ct.  549;  Davenports.  Lacon,  17  Id. 

Gregg,    3     Stew.    433;     Hervey    v.  278;   Adler -o.  Roth,  2  McCrary,  445; 

Champion,  11    Humph.   569;  Moore  Schacklett's  Appeal,   14   Pa.  St.  326; 

V.  Fedawa,  13  Neb.   379;  Berryman  Hoag  «.  Howard,  55  Cal.  564;    Chan- 

V.   Stern,   14   Nev.    415;    Moresi    v.  dler  v.  Dyer,  37  Vt.   345;   Vincent  t\ 

Swift,  15  Nev.  215 ;  Yeatman  B.  Sav-  Huddleston,     Cooke,     (Tenn.)     254; 

ings  Institution,   95   U.S.  764;  Peck  Ward  v.   McKenzie,   33   Tex.     297; 

V.   Webber,    7     How.   (Miss.)     658;  Harrison    v.    Trader,     29   Ark.   85; 

Saunders  v.   Columbus   Life  Ins.  Co.  Trellson  v.  Green,  19  Id.  376;   Deslia 

43  Miss.  583;  McBride  v.   Harn,  48  v.  Baker,  3  Id.  509;  JMoore  «.  Holt,  10 

Iowa,  151;   People  v.  Cameron,  7  111.  Gratt.   284;     Erskine  v.     Staley,    12 

468;    Worcester     National   Bank  v.  Leigh,  406. 

Cheeney,   87   111.    602;    Liebman  «.  2  Ten^ant  -y.  Battey,    18  Kan.  324; 

Ashbacker,  36  Oliio  St.  94;   Patch  ».  Fullers.  Hasbrouck,  46    Mich.  78; 

Wessels,  46  Mich.    249;    Greely  v.  Avery  ©.  Stephens,  48  Mich.  240. 


22  THE    REMEDY    OUTLINED. 

damages  for  his  false  assnmption  of  the  jus  ad  rem,  his  ah  use 
of  the  extraordinary  process  employed  and  liis  perversion  of 
the  law.  1 

This  lien  is  not  conventional  hut  is  created  by  law;  rather,  it 
arises  by  operation  of  law  npon  circumstances  existing  with 
retrard  to  the  debtor  in  his  relation  to  his  creditor,  and  upon  the 
authorized  preliminary  seizure  of  property  to  conserve  it  for  the 
eventnal  satisfaction  of  the  debt.  The  legislator  cannot  arbi- 
trarily give  one  man  a  lien  upon  the  property  of  another  any 
more  than  he  can  thns  transfer  the  property  itself  from  the 
owner  to  the  favored  donee;  but,  by  general  laws,  a  lien,  not 
the  result  of  the  consent  of  parties,  may  constitutionally  spring 
into  existence  upon  the  happening  of  certain  conditions,  and 
possess  all  the  qualities  of  a  conventional  incumbrance  upon 
specific  property. 

Conventional  liens  are  not  entorceable  by  attachment,  as  a 
general  rule.  The  suit  is  to  create  and  enforce  the  law-made 
lien.  The  exceptions  constitute  probably  less  than  one  per 
centum  of  attachment  cases.  If  the  creditor  has  a  pre-existing 
right  in  a  thing  arising  from  contract,  he  need  not  invoke  the 
extraordinary  process  of  attachment  to  secure  it.  Should  he 
resort  to  this  remedy  to  recover  his  debts,  he  need  not  aver  the 
existence  of  his  prior  privilege;  and,  indeed,  he  may  as  well 
abandon  it.  In  some  States,  a  creditor  whose  debt  is  already 
secured  by  mortgage  or  other  already  existing  lien,  is  expressly 
inhibited  from  proceeding  under  the  attachment  statute  against 
the  hypothecated  property.     In  all,  the  vindication  of  conven- 

1  Hardeman   v.   Morgan,    48  Tex.  v.    Thompson,     3    Met.     (Ky.)   121 

103;  Lowenstein  «.  Monroe,  55  Iowa,  Smith     v.    Story,    4     Himiph.     1G9 

83;    Turner  v.   Lytle,  59   Md.   199;  Spaulding  v.  Wallett,  10   La.  Ann 

Raymond  x>.   Green,     12  Neb.   215;  105;  Moore  ®.  Willenberg,  13  Id.  22 

Boyer  «.  Clark,  3  Neb.  161;   Stevens  Accessory  Co.  ■».  McCurran,   Id.  214 

t\  Able,  15  Kan.  584;  Read  ».  Jeffries,  McDaniel  v.   Gardner,    34   Id.   341 

16  Kan.  534;  Wagner -».  Stocking,  22  Dickinsons.    Maynard,   20   Id.   C6 

Ohio  St.  297;  Dent  V.  Smith  et  al.bZ  Harger  v.  Spofford,    46     Iowa,   11 

Iowa,  262;    Campbell  v.   Chamber-  Kinseyt).  Wallace,  36  Cal.  462;  Coch 

lain,  10  Iowa,  337;  Carey  v.   Gunni-  rane  ?;.   Quackenbush,  29  Minn.  376 

son,  51  Id.  202;  Vorse  v.  Phillips,  37  Clark  v.  Brott,  71  IMo.  473;  Frank  v. 

Id.  428;   Bunt  v.  Rheum,  52  Id.  619;  Chatle,  34  La.  Ann.  1203. 
Carver  v.  Shelley,  17  Kan.  472;  Nolle 


ABSENCE    OF    A    PRE-EXISTING    LIEN.  23 

tional  liens  by  attacliment  is  without  statutory  warrant.  There 
are,  however,  in  several  states,  autliorizations  of  the  remedy  to 
enforce  pre-existing;  liens,  not  conventional;  and  hence  arise  the 
exceptional  attachments  above  mentioned.  The  sequestration 
of  property  in  a  suit  to  recover  its  price  is  often  called  attach- 
ment, though  the  proceeding  .should  be  classed  with  suits  to 
vindicate  the  vendor's  lien.  Considered  as  an  attachment  case, 
it  is  exceptional,  since  the  writ  is  directed  to  specific  property 
and  the  seizure  bears  a  relation  to  competing  attachments  under 
the  prevalent  system  quite  different  from  that  of  a  preliminary 
levy  to  secure  an  ordinary  debt.  Suits  on  log  liens,  known  in 
several  states,  have  also  this  exceptional  character,  so  far  as  con- 
cerns the  direction  of  the  writ  to  particular  things,  and  the 
arising  of  the  lien  from  another  source  than  seizure.  The  same 
maybe  said  of  attachments  of  ship  materials,  of  manufactured 
slate,  of  cut  granite,  of  growing  crops,  etc.,  under  special 
statutes.!  Other  anomalous  applications  of  the  remedy,  and 
other  uses  of  the  term  attachment  than  that  in  which  it  is  ordi- 
narily employed  with  reference  to  property,  will  be  noticed 
hereafter.  The  o-eneral  rule  is  that  attachment  is  to  enforce 
liens  of  its  ow^n  creation;  not  those  pre-existing  whether  con- 
ventional or  of  other  character. 

Ordinary  debt  is  wdiat  the  remedy  aids  in  suits  for  its  collec- 
tion. Ordinary  property  is  what  the  lien-creating  law  hypo- 
thetically  encumbers  under  the  given  circumstances.  This  is 
anomalous,  extraordinary  and  contrary  to  the  usages  of  the 
common  law.  The  attachment  system  is  thus  abnormal,  unique, 
and  governed  by  principles  in  many  respects  peculiar.  It  is 
nevertheless  symmetrical,  consistent  and  consonant  with  the 
requisites  of  legal  science.  It  is  based  on  the  recognition  of 
property  liability  for  the  pecuniary  obligations  of  its  debtor- 
owner.  It  rests  on  the  assumption  of  the  primary  responsi- 
bility of  that  to  which  credit  lias  been  virtually  given — a 
responsibility  equivalent  to  a  general,  silent  lien.  It  recognizes 
such  property  liability  as  latent,  yet  susceptible  of  being  made 

^Brugman  v.  McGnire,  33  Ark.  c.  Randall,  73  Id.  439;  Haywood  «. 
733 ;  Fuller  0.  Nickerson,  69  Me.  228 ;  Cunuingliam,  Id.  128;  Tignor  «. 
Murphy  c.  Adams,  71  Id.  113;  Flood      Bradley,  32  Ai'k.  733. 


24  THE    KEMEDY    OUTLINED. 

the  foundation  of  the  inclioate,  specific,  attachment  lien,  when 
tlie  creditor  sliows  by  his  affidavit  that  the  debt  is  due  and  of 
such  character  as  the  statute  prescribes  and  that  such  statutory 
grounds  exist  as  to  render  inadequate  the  ordinary  process  for 
the  collection  of  debt. 

Sec.  7.    Essentials  to  Create  the  Lien. 

The  remedy  is  entirely  statutory.  Every  state  has  its  own 
statute,  and  therefore  the  general  system  varies  in  each.  All 
agree,  however,  in  essentials;  the  diiferences  appear  in  minor 
matters.  Everywhere,  the  remedy  is  wholly  dependent  upon 
statute  authorization,  so  that  no  attachment  suit  could  be 
instituted  in  any  state  were  the  laws  there  authorizing  it 
repealed. 

To  the  statute,  then,  the  creditor  must  look  for  his  right  to 
resort  to  this  extraoi'dinary  mode  of  relief.  lie  must  observe 
all  the  conditions  imposed.  He  must  lay  his  grounds  within 
the  purview  of  the  legislative  gi-ant.  His  money  demand, 
though  but  an  ordinary  debt,  must  be  due  upon  contract,  if  the 
statute  of  his  State  limits  him  to  that.  The  defendant  must  be 
a  non-resident  or  an  absconding  or  property-concealing  or  fraud- 
ulent debtor,  or  whatever  else  may  render  him  liable  as  an  at- 
tachment-defendant under  the  law.  All  statutory  requisites 
must  be  observed  under  pain  of  nullity.  They  are  essential  to 
the  jurisdiction  of  the  court.  The  statutory  requirements  of 
the  affidavit,  the  bond,  the  writ,  the  summons,  and  of  the  notice 
on  failure  of  summons,  especially  when  that  is  made  jurisdic- 
tional by  the  statute,  as  it  always  should  be,  are  indispensable 
as  the  seizure  itself.  Indeed,  seizure  would  be  invalid  and 
would  be  no  attachment,  legally  speaking,  in  the  absence  of  the 
pre-requisites;  and  it  would  not  justify  a  judgment  perfecting 
the  lien  in  the  absence  of  subsequent  requisites. '  Even  a  court 
of  general  jurisdiction  acts  upon  special  authority  so  far  as 
attachment  is  concerned,  and  must  look  to  the  statute  for  power 
to  hear  and  determine  the  cause;  and  the  authorization  cannot 
be  extended  beyond  the  true  import  of  the  law. 3 

^  See  many  authorities  cited  in  Ch.  ^  Qqq  q^^  x,  §  6. 

X,  §  5. 


ESSENTIALS    TO    CREATE    THE    LIEN.  23 

The  requirement  of  an  attachment  bond  is  not  universal  like 
that  of  the  afiidavit;  but,  wherever  required,  it  is  jurisdictional. 
The  intent  of  the  law-maker  is  that  process  shall  not  issue  upon 
the  ex  parte  statement  of  the  creditor  under  his  own  oath  un- 
less he  first  secure  the  alleged  debtor  from  injury  in  case  it 
shall  prove  to  have  been  sued  out  wrongly  and  even  maliciously.  ^ 
Without  a  bond,  the  plaintiff  is  bound  to  repair  any  damage 
done  by  his  abuse  of  process,  but  the  cases  are  numerous  in 
whicli  he  is  not  pecuniarily  able  to  make  good  any  loss  which  he 
may  thus  inflict:  so  the  statutory  requirement  of  a  bond  with 
surety  would  be  everywhere  a  commendable  and  salutary  pro- 
vision, and  ought  to  be  universal  in  consideration  of  the  abnor- 
mal character  of  the  attachment  remedy.  The  requirement  is 
now  very  general;  and,  wherever  it  exists,  it  proves  of  practical 
value,  greatly  conducive  to  restraint  upon  the  abuse  of  the  pro- 
cess and  to  the  protection  of  innocent  and  non-indebted  defen- 
dants. 

The  writ  must  be  valid  to  render  the  attachment  so.  It  is 
essential  to  its  validity  that  the  personal  action  be  first  insti- 
tuted, at  least  tliat  the  petition  be  filed  or  such  initiatoiy  step 
taken  as  required  by  the  practice  of  tlie  State  for  the  commence- 
ment of  an  action  for  debt  or  such  money  demand  as  the  statute 
recognizes  as  a  proper  cause  of  action;  because,  the  conservative 
remedy  being  merely  to  aid  a  principal  suit,  such  suit  must  first 
be  in  a  condition  to  be  aided.  It  is  also  essential  to  the  validity 
of  the  writ  that  it  be  preceded  by  just  such  an  afiidavit  as  the 
statute  requires,  since  otherwise  the  special  power  of  the  judge 
to  issue  it,  directly  or  through  his  ministerial  officer,  would  not 
be  called  into  being.  So  must  the  bond  precede,  where  that  is 
jurisdictional.  Tlie  command  to  the  sheriff  to  do  that  which  is 
trespass  if  not  done  under  the  order  of  a  court  havino- the  rio-ht 
to  order  by  first   acquiring  jurisdiction  so  far  as  the  issuing  of 

1  Benedict    «.    Bray,    2    Cal.   251;  wright  «.  Stewart,  37  Ark.  614;  Dent 

Thompson  t).  Arthur   Dudley,    (Ga.)  v.   Smith,   53    Iowa,    2G3;    Charlc  v. 

253;  Cousins  v.  Brashier,  1   Blaclvf.  Brott,  71  Mo.  473 ;  Lawrence  ■?).  Hag- 

85;  Ford  «.  Woodward,  10  Miss.  260;  erman,  50   111.   68,   and  other   cases 

Briggs  V.  Smith,  13  Tex.  269;  Boat-  cited  in  Ch.  XIV,  §  §  2,  3. 


26  THE    REMEDY    OUTLINED. 

the  writ  is  concerned,  is  no  protection  to  him  or  to  the  plaintijff 
i.inless  statutory  pre-reqnisites  have  been  first  observed. ^ 

The  summons,  under  the  prevailing  practice,  may  go  out 
■with  the  petition  and  the  writ  of  attachment,  and  its  issue  is 
indispensable  to  the  etficacy  of  both.  Effort  to  serve  the  de- 
fendant is  everywhere  required.  But  it  is  not  an  indispensable 
requisite  that  the  summons  be  served,  for  the  theory  of  attach- 
ment is  that  the  extraordinary  remedy  should  be  employed  when 
the  defendant  cannot  be  reached  by  ordinary  process  or  when 
the  circumstances  are  such  that  sucli  process  is  not  likely  to 
prove  adequate.  On  failure  of  the  necessary  effort  to  summon 
him,  he  may  be  notified  by  publication. 

The  writ  maybe  legally  executed  though  the  summons  has 
not  been  served.  The  execution  of  it  is  an  indispensable 
requisite  to  jurisdiction  in  the  sense  of  power  to  hear  and  deter- 
mine. It  is  not  in  an  any  higher  sense  jurisdictional  than  the 
affidavit,  the  issue  of  the  summons,  and  the  bond  where  required; 
the  court  does  not  gain  jurisdiction  by  its  own  process,  as  has 
been  sometimes  supposed.  The  return  that  the  writ  has  been 
executed  but  the  summons  not  served  enables  the  court,  at  that 
stage,  to  do  nothing  more  than'take  custody  of  the  property  and 
order  notice,  by  publication  or  by  some  legally  authorized 
method,  to  the  defendant.  When  the  period  of  the  notice  has 
expired,  and  official  proof  of  it  has  been  made,  the  non-appear- 
ing defendant  is  liable  to  default. 

No  default  can  be  entered  in  any  personal  suit  unless  the 
defendant  has  been  guilty  of  laches;  unless  he  has  disregarded 
either  summons  or  other  notice;  and,  since  the  attachment  is 
auxiliary,  it  can  afford  no  greater  facilities  for  defaulting. 
The  very  fact  that  attachment  statutes  require  notice  after  seiz- 
ure when  summons  has  failed,  shows  that  they  do  not  recognize 
seizure  itself  to  be  notice. 

In  brief,  attachment,  considered  as  a  means  of  creating  a 
lien  in  fjxvor  of  an  ordinary  debtor;  as  a  preliminary  levy  antici- 
patory of  execution  after  judgment;  as  an  innovation  on  com- 
mon law,  and  as  the  means  by  which  extraordinary  jurisdiction 

•  See  Ch.  IV,  §  4,  and  cases  there  cited. 


ESSENTIALS    TO    CREATE    THE    LIEN. 


27 


is  acquired  and  exercised,  is  a  harsh  and  exceptional  remedy; 
and  because  it  is  such,  the  statutes  authorizing  it  should  be 
strictly  construed.  ^ 

The  doctrine  ot  strict  construction,  with  regard  to  attachments, 
is  confined  to  the  authorization  of  the  remedy.  There  being 
no  law  for  such  procedure  except  that  of  the  statute  under 
wjiich  it  is  prosecuted,  and  the  statutory  authorization  being  out 
of  the  ordinary,  as  aboved  expressed,  the  doctrine  of  strict  con- 
struction applies  when  the  authority  to  proceed  is  in  question. 
But  when  there  is  clearly  a  grant  of  authority,  the  questions 
which  arise  in  practice  thereunder,  such  as  those  concerning 
evidence  and  the  like,  are  not  to  be  governed  by  the  rule.  Even 
the  statutes  themselves  will  be  liberally  construed  in  the  inter- 
ests of  justice  and  against  fraud,  when  the  authorization  of  the 
remedy  is  clear. ^ 

There  is  a  marked  difference  between  the  evidence  required 


J  May  «.  Baker,  15  111.  89;  Moore 
V.  Hamilton,  7  111.  429;  Poole  v. 
Webster,  3  Met.  (Ky.)  278;  Haywood 
V.  Collins,  60  111.  328;  Wilkie  v. 
Jones,  1  Morr.  (la.)  97 ;  Musgrave  v. 
Brady,  Id.  45G ;  Leake  v.  Moorman, 
Phill.  (N.  C.)  L.  1G8;  Devries  «.  Sum- 
mitt,  86  N.  C.  126;  Humphrey  v. 
Wood,  Wright,  (Ohio,)  566 ;  IMyers  v. 
Smilh,  29  Ohio  St.  125;  Wooster  v. 
McGee,  1  Tex.  17;  Marx  v.  Abraham, 
53  Tex.  264;  Galdwell  v.  Haley,  8 
Tex.  317;  Becker  v.  Bailies,  44  Ct. 
167  ;  Colt  V.  Ives,  31  Ct.  25 ;  Montpe- 
lier&c.  R.  R.  Co.  v.  Coffrin,  52  Vt. 
17 ;  Barksdale  v.  Hendree,  2  Patt.  & 
H.  (Va.)  43;  Hopkirk  v.  Bridges,  4 
H.  &  M.  413 ;  McPherson  v.  Snowden, 
19Md.  197;  Smith  i;.  Easton,  54  Md. 
138;  Grace  v.  Rittenberry,  14  Ga.  232; 
Waxelbaum  i;.  Paschal,  64  Ga.  275; 
Metts  V.  Ins.  Co.  17  S.  C.  120;  Claus- 
sen  V.  Fultz,  13  S.  C.  476;  Buckley  v. 
Lowry,  2  Mich.  418 ;  Van  Norman  v. 
Jackson  Circuit  Judge,  45  Mich.  204; 
Graham  v.  Burckhalter,  2  La.  Ann. 
415;  Planter's  Bank  ■p.   Byrne,  3  Id. 


687;  Wilson  v.  Churchman,  4  Id. 
452;  Shirley  v.  Owners,  5  Id.  260; 
Stockton  V.  Douney,  6  Id.  581 ;  Board- 
man -».  Glenn,  7  Id.  581;  New  Or- 
leans ^).  Garland,  11  Id.  438;  Gordon 
?).  Baillie,  13  Id.  473;  Price -o.  Mer- 
ritt.  Id.  526 ;  Frellson  v.  Stewart,  14 
Id.  832;  McDaniel  v.  Gardner,  34  La. 
Ann.  342;  Wrights.  Smith,  66  Ala. 
545;  Johnson  v.  Hannah,  Id.  127; 
Pierce  ?).  Smith,  1  Minn.  82;  Aner- 
bach  V.  Hitchcock,  28  Minn.  73; 
Hines  v.  Chambers,  29  Minn.  7; 
Bundrem  v.  Denn,  25  Kan.  430 ;  Clark 
V.  Brott,  71  Mo.  473;  Anderson  v. 
Coburn,  27  Wis.  558 ;  Slate  v.  Corne- 
lius, 5  Oregon,  46 ;  Wescott  v.  Archer, 
12  Neb.  345;  Creighton  v.  Kerr,  1 
Col.  519;  Moresi  v.  Swift,  15  Nev. 
215;  Spiegelberg  «.  Sullivan,  1  New 
Mex.  575 ;  Bottom  ®.  Clarke,  7  Cush. 
487;  Gregg  «.  Nilson,  8  Phila.  91; 
Sheedy  v.  Second  National  Bank,  62 
Mo.  17. 

2  Bank  of  Augusta  v.  Conrey,  28 
Miss.  667;  Bryan  v.  Lashley,  21  Id. 
284;  Flake  v.  Day,  22  Ala.  132;  Bur- 


28  THE    KEMKDY    OUTLINED. 

for  the  issue  of  tlie  writ,  and  that  for  tlio  maintenance  of  the 
attachment.  Statutes  which  authorize  the  issue  upon  the  credi- 
tor's oath  to  his  helief  of  the  existence  of  the  necessary 
grounds  do  not  warrant  the  sustninino:  of  tlie  attachment  upon 
merely  such  belief.  The  plaintiff  is  bound  to  proceed  contra- 
dictorily with  the  defendant  and  to  establish  the  fact  of  the 
existence  of  some  statutory  ground  and  cause  of  action  by  com- 
petent testimony.!  Qy^  jf  tijQ  defendant  is  not  in  court  to  be 
proceeded  with  contradictorily,  the  plaintiff  must  ])rove  the 
existence  of  the  fact  or  facts  wdiich  lie  had  previously  believ^ed 
to  be  true,  before  he  can  have  default  confirmed  and  final  judg- 
ment rendered  with  privilege  upon  the  property  attached.  In 
making  further  proof,  upon  traverse  of  the  affidavit,  where  the 
question  is  whether  it  is  in  conformity  to  statute  v/hen  the 
aiiianthas  sworn  to  his  belief,  the  fact  of  his  belief  is  the  ques- 
tion at  issue;  when  he  has  sworn  to  his  good  reason  for  belief, 
the  reasonableness  of  his  opinion  may  be  the  point  of  contro- 
versy; but  when  he  comes  afHrmatively  to  sustain  his  attach- 
ment, the  burden  of  proof  is  on  him,  not  merely  to  show  that 
he  had  such  belief  or  reasonable  ground  to  believe,  (where  such 
sworn  allegations  are  admissible,)  as  warranted  the  rightful  issue 
of  the  writ,  but  that  the  necessary  facts  constituting  ground  for 
attachment  and  cause  of  action  are  true.  He  must  then  estab- 
lish, not  that  he  believed,  but  that  the  fact  was  that  the  debtor 
had  absconded,  was  about  to  abscond,  was  fraudulently  conceal- 
ing property,  or  whatever  statutory  ground  he  may  have  de- 
clared u])on. 

At  this  stage,  the  court  is  in  the  exercise  of  jurisdiction 
previously  acquired  through  strict  compliance  with  statutory 
requisites:  so  now  an  error  committed  with  reference  to  the 
evidence  given  to  sustain  the  attachment  or  any  other  illegal 
use  of  power  vested,  though  specially  given  by  statute,  would 
not  be  void  but  only  voidable;  would  not  render  the  judgment 
coram  nonjudice/  would  not  subject  it  to  subsequent  collateral 
attack,  but  would  be  reviewable  only  in  an  appellate  court. 

nellB.  Robertson,  10  111.  282;  Hanni-      28  111.  429;  Girard   Life    Ins.    Co.  ». 

bal  &  St.  Joe  R.  R.    Co.  v.  Crane,  102      Field,  45  Pa.  St.  132. 

111.  249;  Peoria  Ins.   Co.  v.  Warner,  i  Sublett  «.  Wood,  76  Va.  318. 


ESSENTIALS    TO    CKEATE    THE    LIEN.  SJ 

It  is  exceediiifi^ly  important  however  tliat  the  professional 
reader  bear  in  mind  tliat  compliance  with  all  the  statutory 
requisites  hut  one  does  not  give  the  court  jurisdiction  so  as  to 
render  the  non-observance  of  that  one  a  mere  matter  of  error 
rather  than  a  jurisdictional  defect.  The  seizure  confers  no  right 
to  determine  the  cause  judicially  if  it  has  not  been  effected  under 
a  valid  writ;  tlie  writ  cannot  possibly  be  valid,  however  regular 
upon  its  face,  if  it  has  not  been  issued  under  a  valid  affidavit; 
the  affidavit  cannot  be  valid  unless  the  statute,  whence  it  derives 
its  entire  right  of  being,  has  been  virtually  followed.  So,  the 
bond  must  have  been  given  where  required;  the  petition  must 
have  been  filed  and  the  suniraons  issued.  No  jurisdiction  arises 
upon  mere  seizure  which  renders  the  neglect  of  any  other  statu- 
tory requisite  a  mere '  error  in  the  exercise  of  jurisdiction. 
[Neither  in  a  court  of  general,  nor  one  of  limited  jurisdiction, 
does  the  rule  vary:  for  both  are  of  special  jurisdiction  so  far  as 
attachment  suits  are  concerned.  And  though  a  court  of  super- 
ior and  general  jurisdiction  may  have  the  defendant  himself  in 
court  wdiere  he  may  have  joined  issue  in  the  personal  action, 
so  that  any  illegal  judicial  act  thereafter  would  be  mere  error  in 
the  exercise  of  jurisdiction  in  that  action,  still  the  jurisdiction 
over  the  ancillary  proceeding  is  not  therel)y  affected  except  as 
to  summons  and  notice;  all  other  statutory  requisites  must  be 
observed  under  penalty  of  absolute  nullity,  so  far  as  concerns 
the  attachment.  Jurisdiction  over  the  suhject-matter  of  the 
personal  suit  does  not  necessarily  include  that  of  the  auxiliary 
proceeding. 

To  outline  the  remedy  in  a  single  sentence:  The  gronnd  or 
reason  for  resort  to  the  extraordinary  process,  the  cause  of 
action,  the  security,  the  writ  and  its  execution,  the  op])ortunity 
for  defense,  the  jurisdiction  and  the  judgment  must  all  Ije  such 
as  the  statute  requires  in  the  State  where  the  proceeding  is 
had,  in  order  to  create,  jperfect  and  vindicate  the  lien  to  secure 
an  ordinary  debt. 


30  6TATUT0KY    AL-THOKIZATION. 


CIIAPTER     II. 
STATUTORY  AUTHORIZATION. 

§  1.  General  Uniformity.  g  6.     Anomalous  Grounds. 

2.  Non-residents.  7.    The    Debt:     What    Debts   are 

3.  Absentees.  recoverable  by  Attachment. 

4.  Absconding  Debtors.  8.     Exceptional  Attachments. 

5.  Fraudulent  Debtors  disposing 

of   their  Property  to  avoid 
Creditors. 

Sec.  1.    General  Uniformity. 

There  is  a  near  approach  to  imiformitv,  in  the  statutes  of  the 
several  States,  in  all  the  principal  features  of  attachment  autlior- 
ization.  By  all  of  thein,  the  action  is  accorded  for  debt  due; 
Ly  many  of  them,  debt  certain  though  not  yet  due,  may 
be  a  cause  of  action  under  prescribed  "Conditions;  by  some,  the 
suit  may  be  for  tort,  and  a  few  grant  the  remedy  on  causes  that 
must  be  treated  as  exceptional.  Nearly  all  attachment  suits 
however  are  for  debts  alleged  to  be  due,  such  as  might  be 
instituted  under  any  attachment    law    in    the    United    States. 

By  all  of  the  statutes,  the  remedy  is  accorded  to  ordinary 
creditors;  it  is  the  means  of  making  any  attached  property 
of  the  debtor  subject  to  a  lien  for  an  ordinary  debt:  this  lead- 
ing feature  is  universal.  There  are  some  States  which  authorize 
attachment  to  vindicate  pre-existing  liens,  but  not  to  the  exclu- 
sion of  the  leading  trait  above  mentioned. 

The  principal  grounds  for  resort  to  this  extraordinary  remedy 
are  the  same  everywhere.  Minor  grounds  differ  in  diiferent 
States,  and  it  will  be  necessary  to  note  them  particularly  here- 
after; but  the  uniformity  existing  in  all,  with  regard  to  the 
main  ones,  is  greatly  conducive  to  the  treatment  of  Attachment 
Proceedings  as  a  system. 


GENERAL    UNIFOKMITT.  31 

Attaclimeiit  legislation  is  based  on  the  assumed  indebtedness 
of  property,  and  it  authorizes  procedure  against  it  when  the 
personal  debtor  cannot  be  effectively  reached  by  ordinary  pro- 
cess. AVith  the  exception  of  some  anomalous  provisions,  (to  be 
hereafter  treated,)  all  the  authorized  statutory  grounds  for 
attachment  may  be  reduced  to  this  one  ground:  the  inadequacy 
of  ordinary  process  to  enable  the  creditor  to  collect  his  claim. 

There  are  tliree  circumstances  under  which  ordinary  process 
is  deemed  inadequate  or  not  certainly  available  and  efficacious: 

First — When  the  debtor  is  a  non-resident. 

Secondly — When  he  absconds,  or  is  about  to  do  so. 

Thi7rlly — -When  he  makes  fraudulent  disposition  of  his 
property,  or  is  about  to  do  so. 

The  first  includes  protracted  absence  "uftder  such  circum- 
stances as  to  hinder  or  prevent  ordinary  process;  the  second 
embraces  the  debtor's  concealing,  secreting,  or  absenting  him- 
self to  defraud  his  creditor  and  defeat  ordinary  process;  and 
the  third  consists  of  fraudulent  removing,  concealing,  transfer- 
ring, assigning  or  otherwise  disposing  of  property,  or  designing 
to  do  so,  by  the  debtor  to  defraud  his  creditor  and  defeat 
ordinary  process. 

The  statutes  sub-divide  these  grounds,  (as  will  hereafter  be 
shown  ;)  but,  for  the  pui-pose  of  a  methodical  treatment  of  the 
subject,  the  writer  will  tahe  them  up  successively  under  the 
three  heads  above  suggested,  and  afterwards  consider  the  anom- 
alous authorizations  not  classible  with  these.  The  reader  will 
at  once  perceive  the  jjropriety  as  well  as  the  advantage  of  treat- 
ing the  case  of  non-residents  and  permanent  absentees  apart 
from  that  against  absconders  and  that  against  concealers  of 
property,  when  he  reflects  that  no  allegation  of  fraud  or  fraudu- 
lent intent  is  necessary  in  such  case,  w'hile  it  is  an  essential 
element  in  laying  the  ground  against  either  of  the  latter  two 
classes  of  debtors.  And  he  will  see  that,  though  fraud  must  be 
charged,  at  least  to  the  extent  of  intent  to  elude  process,  in 
suits  against  the  second  two  classes,  yet  it  is  convenient  to  con- 
sider them  separately,  since  the  allegation  against  the  absconder 
is  that  he  has  absconded,  removed,  concealed  or  secreted  himself, 
or  is  doing  so,  or  is  about  to  do  so,  to  evade  process  and  defraud, 


32  STATUTOliY    AUTIIOUIZATIOX. 

etc.;  while  tliat  against  tlie  other  is  that  he  has  removed, 
concealed,  secreted  or  fraudulently  disposed  of  his  jyroperty,  or  is 
doing  so,  or  is  about  to  do  so,  to  defraud  his  creditor. 

The  statutes  of  the  different  States,  though  varying  in  minor 
particulars,  are  generally  uniform  in  authorizing  the  remedy  Ly 
attachment  against  these  three  classes  of  debtors.  The  author- 
izations against  the  three  rest  on  the  same,  one,  underlying 
principle:  the  right  of  the  creditor  to  have  an  adequate  remedy 
for  making  his  money  out  of  his  debtor's  property,  when  ordi- 
nary process  is  not  certainly  efficacious  for  that  purpose. 

It  must  be  remarked  that  tliere  are  many  instances  in  which 
ordinary  process  would  prove  adequate,  though  the  debtor  be  a 
non-resident,  or  an  absconder  or  a  concealer  of  property. 
Though  residing  out  of  the  State,  the  debtor  may  be  present 
and  amenable  to  ordinary  process;  though  absconding,  conceal- 
ing or  secreting  himself,  he  might  be  cited  by  leaving  summons 
at  the  place  of  his  usual  abode  with  some  member  of  his  family 
competent  to  receive  it  for  him;  though  fraudulently  disposing 
of  some  of  his  property,  he  may  have  other  property  liable  to 
execution;  though  having  the  intent  to  defraud,  he  may  not 
really  carry  it  out.  Under  all  such  circumstances,  ordinary 
process  might  prove  sufficient,  but  the  law  allows  the  extraordi- 
nary, not  merely  when  the  ordinary  process  would  certainly 
prove  inadequate,  but  also  when  its  result  is  precarious. 

Several  of  the  statutes  couple  absence  with  non-residence; 
and,  where  only  the  latter  term  is  used,  it  is  construed  by  the 
courts  of  some  of  the  States  to  include  tlie  former.  Abscond- 
ing, either  by  express  enactment  or  by  judicial  construction,  is 
in  many  of  the  States  treated  as  the  hiding  or  running-away  of 
the  debtor  under  such  circumstances  that  he  cannot  be  even 
indirectly  summoned.  Secreting  or  otherwise  fraudulently  dis- 
posing of  property  is  usually  qualified  so  as  to  show  that  it  is 
such  secretin cT  that  there  is  nothino-  left  or  likely  to  be  left  out 
of  which  the  creditor  may  make  his  money  by  execution  after 
judgment  under  ordinary  process.  Under  statutes  thus 
expressed  or  construed,  it  ought  to  be  always  easy  to  determine, 
from  the  creditor's  affidavit,  whether  there  is  any  necessity  for 
the  issuance  of  the  conservative  writ. 


GENERAL    UNIFORMITY.  33 

To  secure  the  creditor's  rights,  and  to  ensure  the  execution  of 
any  judgment  he  may  obtain,  when  the  condition  of  the  debtor 
is  such  that  there  is  great  improbability  that  his  property  will 
remain  answerable  to  judgment  following  ordinary  process,  the 
legislator  authorizes  the  creation  of  an  incipient  specific  lien  by 
means  of  attachment,  and  thus  conserves  the  debtor's  property 
when  attached — putting  it  beyond  the  power  of  the  debtor  to 
incumber  or  alienate  it  to  the  prejudice  of  the  creditor. 

Some  line  of  demarcation  must  be  drawn,  (though  necessarily 
only  in  a  general  way,)  between  property  which  ought  to  be 
til  us  conserved  and  property  which  requires  no  such  conserva- 
tion. In  the  incipiency  of  the  attachment  suit,  when  the  writ 
is  applied  for,  when  only  the  creditor  is  before  the  court,  noth- 
ing can  be  known  of  the  facts  except,  by  his  own  ex  2^<^"i"t'i 
showing;  hence,  what  he  swears  to  be  true,  and  obligates  him- 
self by  bond  to  make  good,  must  constitute  the  data  upon  which 
to  decide  whether  he  is  entitled  to  the  issuance  of  the  extraoi  di- 
nary  process. 

Most  of  the  State  statutes,  authorizincp  attachment,  make  the 
creditor's  sworn  statement  the  criterion  by  which  the  inade- 
quacy of  the  ordinary  process,  and  the  necessity  for  the  extra- 
ordinary, are  to  be  determined;  or,  what  is  equivalent,  they 
make  the  affidavit  the  test  whether  the  debtor  is  properly 
charged  to  be  one  whose  property  is  attachable  under  the  law 
and  ought  to  be  conserved  by  having  a  specific  lien  immediately 
put  upon  it.  The  testing  of  the  truth  of  such  averment  comes 
usually  at  a  later  stage  of  the  case. 

It  will  be  seen  that  it  is  the  creditor's  assertion,  belief  or 
even  fear  which  oftentimes  controls  the  question  in  the  fii-st 
instance;  and.  the  rule  is,  not  that  the  debtor  must  certainly  i)e 
a  non-resident,  an  absconder  or  a  concealer  of  property  but  that 
he  must  be  duly  charged  as  such.  What  was  said  in  the  begin- 
ning of  this  chapter  to  the  effect  that  the  law  authorizes  pro- 
cedure, by  attachment,  against  property  as  an  indebted  thing, 
when  the  personal  owner  cannot  be  effectively  reached  by  ordi- 
nary process  because  of  his  being  a  non-resident,  an  absconder 
or  a  concealer  -of  his  property,  will  be  understood  as  qualified 
by  the  remarks  which  have  followed.  It  will  thus  appear  that 
3 


34  STATUTORY    AUTHORIZATION. 

the  ineffectnality  of  the  ordinary  process  need  not  be  rendered 
absohitely  certain  before  tlie  extraordinary  and  conservative  writ 
may  be  lawfully  issued.  The  oath  of  the  creditor  is  prima 
facie  proof,  and  entitles  hi  in  to  the  writ,  though  he  swears  only 
to  his  knowledge  and  belief  of  the  grounds  when  that  is  all 
that  the  statute  requires  in  the  iirst  instance.  But  furtlier 
proof  is  necessary  to  sustain  attachment. 

Sec.  2.    Non- Residents. 

All  the  States  authorize  attachments  against  the  property  of 
non-resident  debtors.  There  is  general  uniformity  in  the 
statutes,  so  far  as  concerns  the  right  of  action  with  the  conserva- 
tive remedy,  against  debtors  not  residing  in  the  State  or  country 
in  which  the  suit  is  instituted,  who  have  property  within  it 
subject  to  execution  for  debt.  The  principle  is  everywhere 
recognized  that  the  property  is  subject  to  the  jurisdiction  though 
its  owner  cannot  be  reached  by  process. 

The  debtor,  whether  living  abroad  or  in  a  neighboring  State, 
is  deemed  a  foreign  debtor.  The  attachment  against  his  prop- 
erty, when  he  is  not  found  in  the  State  where  the  suit  is  brought 
and  served  w^itli  process,  but  is  merely  notified  by  publication, 
is  a  foreign  attachment.  The  distinction  between  foreign  and 
domestic  attachment  is  not  observed  by  all  of  the  States. 
"Where  it  is  observed,  the  former  is  usually  associated  with 
garnishment  or  the  trustee  process.  However,  in  all  the  states, 
the  creditor  has  his  remedy  by  attachment  against  the  property 
of  his  non-resident  debtor,  whatever  the  terra  by  which  the  pro- 
cess is  designated.  The  process  is  none  the  less  that  of  foreign 
attachment  by  reason  of  the  avoidance  of  the  term. 

The  statutes  designedly  employ  the  term  "non-resident" 
instead  of  "  foreign-resident;"  for  the  condition  upon  which 
attachment  issues  is,  not  that  the  debtor  be  a  resident  of  another 
State  or  country,  but,  that  he  be  not  a  resident  of  the  State  in 
which  the  suit  against  him  is  brought  and  the  attachment  issued. 

The  statutes  do  not  all  use  precisely  the  same  phraseology  in 
authorizing  attachment  against  the  property  of  non-residents. 
The  words  employed  in  many  of  the  statutes  are,  "When  the 
defendant  is  a  non-resident  of  this  State;"  in  others,  "When  the 


NON-KESIDENTS.  35 

defendant  is  not  a  resident,"  etc.;  and  "When  tlie  defendant  is 
not  au  inhabitant,"  etc.;  which  are  equivalent  expressions  as 
they  appear  in  tlicir  respective  contexts.  The  statutes  of  five 
S.ates  authorize  attachment  "when  the  defendant  resides  out  of 
the  State,"  but  the  phrase  is  construed  to  me  m  the  same  as  tliosc 
above  quoted.  In  Michigan,  the  phiintitf  must  swear  that  liis 
debtor  is  not  a  resident  of  the  State  and  has  not  resided  therein 
for  three  months  preceding  the  making  of  the  affidavit.  In 
other  States  there  are  unimportant  qualifications,  but  it  nuiy  be 
generally  said  that  in  all  the  States  and  Territories  and  in  the 
District  of  Columbia,  non-residence  is  a  ground  for  attachment. 

Some  of  the  statutes  expressly  mention  foreign  corporations, 
while  others  may  be  understood  to  include  them  under  general 
designations  construable  as  including  artificial  persons.^  It 
will  be  seen  that  the  practice  is  not  uniform  with  regard  to 
attachments  against  foreign  corporations. 

The  prominent  idea  of  the  various  statute  authorizations,  so 
far  as  the  ground  under  consideration  is  concerned,  is  that  the 
debtor  must  be  a  non-resident  of  the  State  where  the  attach- 
ment is  sued  out — not  that  he  must  be  a  resident  elswhere.  He 
need  not  be  a  foreign  resident.  He  may  be  a  cosmopolitan 
having  no  fixed  place  of  abode.  He  may  be  a  constant  traveller 
claiming  no  home.  He  may  be  personally  amenable  to  no  par- 
ticular jurisdiction.  The  essential  charge  is  that  he  is  not 
residing  or  living  in  the  State;  that  is,  lie  has  no  abode  or 
home  within  it,  where  process  may  be  served  so  as  effectually  to 
reach  him.  In  other  words,  his  property  is  attachable  if  his 
residence  is  not  such  as  to  subject  him  personally  to  the  juris- 
diction of  the  court,  and  place  him  upon  equality  with  other 
residents  in  this  respect. 

The  debtor  may  be  the  subject  of  a  foreign  power;  he  may 

'Pliillipsburg  Bank «.  Lackawanna  La.    415;    Hazzard    v.   Agricultural 

R.  R.  Co.  27  N.  J.  L.  129;  Cooke  v.  Bank,  11   Rob.  (La.)  320;    Libbey  v. 

State  National   Bank,  50   Barb.  339;  Hodgdon,   9  N.  H.  394;  Buslmell  v. 

Bowen   v.   First    National   Bank   of  Com.  Ins.  Co.,  15  S.  «&  R.  174;  Phin- 

]VIedina,  34   How.   (N.  Y.)   Pr.   408;  ters' «fe  Merchants' Bank  ^).  Andrews, 

ISIineral  Point  R.  R.  Co.  «.  Keep,  22  8  Porter,  404;  Union  Bank   «.  U.  S. 

111.  9;  S.  C.  R.  R.  Co.  ?j.  McDonald,  5  Bank,   4   Hump.   3G9;    St.  Louis   P. 

Ga.  531;  Martin  v.  Branch  Bank,  14  lus.  Co.  «.  Cohen,  9  Mo.  421. 


86  STATUTORY    AUTIIOKIZATION 

be  a  citizen  of  a  Slate  other  tlian  tliat  in  which  the  attachment 
puit  is  instituted;  lie  may  not  only  be  a  citizen  and  a  voter 
tliere,  but  his  domicile  or  principal  residence  may  be  there;  yet 
if  he  has  a  residence  also  in  the  place  where  the  suit  is  brought, 
at  which  he  may  be  duly  served  with  ordinary  process,  his 
property  ought  not  be  subjected  to  attachment.  A  place  of 
abode  at  which  a  summons  may  be  lawfully  served  "  is  the  con- 
dition on  which  process  of  attachment  cannot  be  issued.  If  a 
debtor  has  not  such  a  I'esidence,  he  is  a  non-resident  within  the 
statute  and  may  be  proceeded  against  by  attachment.  *  *  * 
The  use  of  this  writ  when  the  defendant  is  within  reach  of 
ordinary  process,  is  wholly  inconsistent  with  the  spirit  and 
design  of  the  statute." ^ 

It  is  true  that  a  debtor  may  be  within  reach  of  ordinary  pro- 
cess by  being  temporarily  within  the  State  where  the  suit  is 
brouglit,  and  yet  his  property  be  amenable  to  attachment;  for 
he,  being  a  non-resident,  could  not  defend  on  the  ground  that 
he  was  actually  served  with  summons. 2  The  rule  is  that  he 
must  have  an  abode  within  the  State  where  process  can  always 
legally  reach  him,  in  order  to  be  exempt  from  this  remedy. 
The  accident  of  finding  him  within  the  jurisdiction  will  not 
deprive  the  plaintiff  of  his  right  to  create  a  lien  upon  the 
debtor's  property  situated  in  the  State.  ^  Even  if  the  debtor 
has  a  temporary  residence  in  the  State  where  the  suit  is  brought, 
it  has  been  held  that  if  he  is  absent,  and  has  his  principal  and 
usual  place  of  abode  in  another  State,  he  may  be  sued  by  attach- 

1  Baldwin  v.  Flagg,  43  N.  J.  L.  495 ;  Moore,  17  Mo.  424. 

Perrine  e.  Evans,  35  Id.  221;  Stout  -Murphy  «.  Baldwin,  41  How.  Pr. 

V.  Leonard,  37  Id.  492;  City  Bank  v.  270;    Clmine  v.  Wilson,  16   Id.  552; 

Men-it,   1   Green,   131;    Bronson    v.  Houghton  v.   Ault,    Id.   77;    Lee  v. 

Shinn,  Id.  250;  Clarke   v.  Likens,  2  Stanley,  9  Id.  272. 

Dutch.  207;  The  Phillipsburg  Bank  ^  Burcalow  «.  Trump,  1    Houston, 

r.  The   Lackawanna  R.  R.  Co.  3  Id.  363;  Greene  ?;.  Beckwith,  38  Mo.  384; 

206;  Kuglar   v.   Shreve,   4  Id.   129;  Jackson  v.   Perry,   13  B.  Mon.  231; 

Boundred  ®.  Del  Hoyo,  Spence,  333;  Malone    v.   Lindley,    1    Phila.   192; 

(or  20   N.  J.   L.   328;)  In  re  Alex.  Bryan   v.   Dunseth,  1    Martin,  N.    8. 

Thompson,  1  Wend.  43;  Haggart  v.  412;  Ilayne  v.  Taylor.  10  La.  Ann. 

Morgan,  5   N.  Y.  422 ;  Ellington  v.  726. 


N0N-KESIDENT8  37 

merit  as  a  imn-fosideiit.'  One  may  liave  a  temporary  abode  at 
a  hotel,  or  l)oarding  house;  but,  if  it  is  not  under  such  cifcuiii- 
stances  that  the  lea\-ing  of  a  summons  there,  addressed  to  him, 
with  a  person  of  proper  age,  would  be  legally  binding  upon 
him,  and  would  be  such  service  as  to  enable  the  officer  to  make 
a  return  that  would  be  as  binding  upon  the  sojourner  as  it  would 
be  upon  any  resident-citizen  thus  served  at  his  domicile,  it  is 
not  such  a  residence  as  would  exempt  his  property  from  attach- 
ment. The  debtor  may  have  a  place  of  business  within  the 
State,  with  a  clerk  or  agent  representing  him  in  his  absence, 
yet  if  he  has  no  place  or  abode  within  it  where  a  summons  may 
be  left  as  at  the  domicile  of  a  citizen-resident,  his  property  may 
be  attached.  3 

The  character  of  the  residenie,  whether  such  as  will  exempt 
from  attachment  or  not,  is  oUen  a  nice  question  of  fact;  but  the 
law  is  that  the  debtor's  property  is  attachable  if  he  has  not  a 
place  within  the  State  where  he  is  legally  answerable  for  cita- 
tion left  for  him  there  under  circumstances  which  would  consti- 
tute a  lawful  summons  upon  any  citizen-resident  if  left  at  his 
domicile. 

And  if  he  has  such  a  place;  if  the  fact  of  his  having  it  is 
admitted,  it  does  not  matter  that  he  has  but  recently  acquired 
or  established  it.  A  new  comer  into  the  State,  with  the  design 
of  reniaining,  who  has  an  abode  at  which  a  summons  may  be 
left  so  as  to  make  legal  service  upon  him,  is  a  resident  within  the 
meaning  of  the  attachment  laws.^  He  may  not  have  acquired 
citizenship,  he  may  have  no  intention  of  acquiring  a  political 
domicile,  lie  may  not  have  become  even  a  resident  for  all  intents 
and  purposes,  yet  if  he  has  a  home  at  which  he  may  be  reached 
by  ordinary  process  at  any  time — (not  for  a  brief  period  of  a 
few  days  only) — he  is  not  a  non-resident  in  the  sense  in  which 
the  statutes  employ  the  term.  This  is  the  true  criterion  by 
which  to  decide  whether  or  not  his  property  is  attachable  on 

>  Stout  V.  Leonard,  37  N.  J.  L.  492;  Martin,  (La  )  413. 

Murphy  v.  Baldwin,  11  Abb.  Pr.  (N.  ^  xhe  Peoide  v.  McClay,  2  Neb.  7; 

S.)  407.  Swaney   ?;.  Hutchins,    13    Neb.    266; 

2  Chase  v.  Ninth  Nat.  Bank,  56  Pa.  Heidenback  v.  Schland,  10  How.  Pr. 

St.  355.     See  Watson   v.  Pierpout,  7  477. 


38  STATUTORY    AUTIIOKIZATION. 

the  ground  now  under  consideration:  if  the  debtor  has  a  place 
of  usual  abode  in  the  State,  at  which  ordinary  process  may  bo 
served,  his  property  is  not  attacliable  as  that  of  a  non-resident; 
but  if  lie  has  not,  it  is  attachable  as  such. 

-Intention  to  remain,  on  the  part  of  one  about  to  come  into 
the  State,  is  of  no  significance  whCn  not  accompanied  with  the 
acts  of  immigration  and  the  establishment  of  a  place  of  resi- 
dence ;i  but  as  soon  as  he  arrives  with  such  intention,  and 
establishes  a  home  meant  to  be  permanent,  though  he  may  be 
the  lessee  of  the  house  in  which  he  lives  or  a  boarder,  he  is  at; 
once  a  resident  within  the  purview  of  the  attachment  laws." 
On  the  other  hand,  the  act  of  coming  into  the  State  is  of  no 
significance  without  the  intent  to  stay.  So  if  one  leaves  witli 
the  intent  of  changing  residence,  the  change  is  of  immediate 
effect.  3 

It  is  said  that,  in  attachment  law,  domicile  may  be  in  one 
State  and  residence  in  another.'*  This  slionld  be  understood  as 
meaning  that  one's  principal  residence,  where  he  may  have 
citizenship  and  exercise  political  rights,  may  be  in  one  State 
while  he  has  such  residence  in  another  as  to  render  him  suscep- 
tible of  beina:  served  with  summons  at  the  latter  and  thus 
amenable  to  ordinary  process  there.  Whether  or  not  a  man  is 
a  resident  often  depends  upon  peculiar  circumstances,  and  is 
determinable  by  the  tacts  prov^ed  in  the  case,  as  is  amply  illus- 
trated in  decisions.  ^ 

The   wife's  legal  residence  is  fixed  by  that  of  her  husband.  ^ 

'  Adams  v.  Evans,  19  Kan.  174.  *  Morgan  v.  Nunes,  54  Miss.  308. 

2  Chesney    v.   Francisco,   12  Neb.  ^  Burrows  ■».  Miller,  4  How.  Pr.  349; 

626;  Kennedy  «.  Baillie,  3  Yeates,  55.  Brown    v.    Asbbough,   40    Id.   260: 

^  Green  ■zj.  Beckwith,  38   Mo.  384;  Thurneyssen    v.   Vouthier,  1  Miles, 

'  Matter  of  Fitzgerald,  2  Caines,  318;  422;  Sbipman  v.  Woodbury,  2  Id.  67; 

Boardman  i;.  Bickford,2  Aikens,  345;  Clarke  v.    Pratt,   18  La.    Ann.    102; 

Burrows  «.  Miller,  4   How.  Pr.   349;  Kennedy    v.   Baillie,   3  Yeates,   55; 

McCollemw.  White,  23  Ind.  43;  Reed  Wells    v.   The    People,   44    111.   40; 

•p.  Ketch,   1    Phila.    105;    Taylor    v.  Smith    v.     Story,    1    Humph.     420; 

Knox,  1  Dall.  158;  Farrow  v.  Barker,  Wheeler  ■».  Degnan,  2  Nott  &  McC. 

3  B.  Mon.  217;    Nailer ».  French,  4  323;      Bainbridge    v.     Alderson,     2 

Yeates,  241 ;  Pfoutz  v.   Comlbrd,  36  Browne,  51 ;  Stratton  v.  Brigham,  2 

Pa.  St.  420;  Moore  v.  Holt,  10  Gratt.  Sneed,  420. 

284.  *  Baldwin  v.  Flagg,  43  N.  J.  L.  495 ; 


NON-RESIDENTS. 


39 


"Kesidence"  as  used  in  the  statutes  is  not  synonymous  with 
"domicile."  One  may  liave  several  residences  but  he  can  have 
but  one  domicile.  His  principal  residence  is  his  domicile.  It 
is  not  necessary  that  his  principal  residence  should  be  in  the 
State  or  within  the  jurisdiction  where  attachment  is  sued  out, 
in  order  to  defend  on  the  ground  that  he  is  a  resident.  If  he 
lias  a  place  of  abode  there,  where  he  may  usually  be  found,  and 
where  lie  would  be  bound  by  a  summons  left  thereat,  he  is  a 
resident  within  the  meaning  of  the  word  as  ordinarily  used  in 
the  statutes.  He  can  be  reached  by  ordinary  process  and  there- 
fore the  reason  for  employing  the  extraordinary  one  of  attach- 
ment does  not  apply.  1  On  the  other  hand,  a  debtor  may  have 
his  property  attached  as  that  of  a  non-resident,  if  he  has  not  a 
place  of  abode  in  the  State  at  whicli  summons  can  be  served -,2 
thongh  he  has  a  resident  representive  authorized  to  act  for  him 
in  his  line  of  business,  (as  before  remarked,)  in  the  State  in 
which  the  attachment  is  sued  out.  ^  Diiference  between  residence 
and  domicile  has  been  frequently  pointed  out  in  decisions.-* 

When  used  unqualiliedly  in  the  statutes  on  attachment,  "resi- 
dence "  usually  means  "  home"  or  "abode;"  and  "resident" 
means  "'inliabitaut."^ 


Hackettstown  Bank  v.  Mitchell,  4 
Dutch.  (28  N.  J.  L.)  516;  Huut  v. 
Hunt,  '72  N.  Y.  217 ;  Somerville  e. 
Somerville,  5  Ves.  787;  Greene  v. 
Greene,  11  Pick.  409;  Hanover  v. 
Turner,  14  Mass.  231 ;  Ciimhridge  «. 
Charlestown,  13  Id.  501 ;  Williams  v. 
Whitinir,  11  Id.  424;  Knox  v.  Waldo- 
borough,  3  Greenl.  455;  iSwauey  v. 
Hutchins,  13  Neb.  26(3. 

1  Bruudred  «.  Del  Hoyo,  20  N.  J. 
L.  328;  Ellington  «.  Moore,  17  Mo. 
424. 

2  Baldwin  v.  Flagg,  43  N.  J.  L. 
495;  Clark  v.  Likens,  26  Id.  207; 
Stout  f.  Leonard,  37  N.  J.  L.  4!/2: 
A  debtor  having  a  residence  in  New 
Jersey  which  is  not  his  usual  place 
of  abode,  may  be  sued  by  attachment 
there,  as  a  non-resident  if  absent 
from  the  Stale  at  the   time — he  hav- 


ing another  residence  beyond  the 
State.  So,  also,  in  New  York :  Mur- 
phy V.  Baldwin,  11  Abb.  Pr.  (N.  S.) 
407;  41  How.  Pr.  270;  Matter  of 
Thompson,  1  Wend.  43. 

^  See  p.  37  and  note;  and  see 
Fielding  v.  Lucas,  37  N  Y. 
197. 

*Wolf  ■».  McGavock,  23  Wis.  516; 
Alstons.  Newcomer,  42  Miss.  186; 
Dorsey  «.  Kyle,  30  Md.  512;  Weber 
V.  Weitling,  3  C.  E.  Green,  441 ;  Fos- 
ter V.  Hall,  4  Humph.  346;  Haggart 
1).  Morgan,  1  Seldon,  422. 

5  Barnet's  Case,  1  Dall.  153;  Lyle 
V.  Foreman,  Id.  480;  Bisewick  v. 
Davis,  19  Md.  82;  Matter  of  Wrigley, 
8  AVeud.  134;  Harvard  College  v. 
Gore,  5  Pick.  379 ;  Roosevelt  «.^Kel- , 
logg,  20  Johns.  208;  Boardmau  v. 
Bickford,  2  Aik.   (Vt.)  345 ;  Wiltse  v. 


40  STATUTORY    AUTHORIZATION. 

"With  such  definition,  it  is  not  insistent  to  say  that  one  maj 
have  residence  in  a  State  without  citizenship.  But  it  seems  in- 
compatible to  say  that  one  may  have  domicile  without  residence, 
since  the  former  includes  the  latter.  If  he  has  his  domicile  in 
any  State,  he  has  a  place  of  residence  there,  thougli  l)e  may  be 
absent  from  it.  The  absence  may  be  so  protracted,  or  be  under 
such  circumstances,  that  attachment  would  lie  against  his  prop- 
erty. It  may  therefore  be  correctly  said  that  attachment  against 
the  property  of  one  absent  from  his  domicile  and  out  of  the 
State  in  which  it  is  located  may  be  maintained  as  against  a 
"non-resident,"  where  the  statute  provision  uses  the  term  so  as 
to  signify  one  not  actually  present  and  residing  in  the  State 
when  the  writ  is  issued.  ^ 

The  phrase  in  a  statute:  "If  the  defendant  is  not  in  tliis 
State,"  has  been  held  to  supply  only  to  a  non-resident;  not  to 
one  temporarily  absent. ^ 

The  debtor's  business  establishment  does  not  determine  his 
place  of  residence.  The  fact  that  one  does  business  wholly  or 
mainly  within  a  certain  State  is  a  circumstance  to  be  considered, 
with  other  facts,  in  determining  his  intentions  and  his  actual 
residency.  A  business  establishment  alone  does  not  constitute 
a  residence,  which  is  a  place  of  abode ;3  and  the  circumstance 
that  a  merchant  does  business  in  one  State  will  be  entitled  to 
no  consideration  in  determining  whether  his  property  is  liable 
to  attachment,  if  he  keeps  his  home,  at  the  same  time,  in 
another  State. ^     One  doing  business  for  another  may  be  liable 

Stearns,     13    Iowa,    282;     Guise  v.  Nunes,  54  Miss.  308. 

O'Daniel,  1   Binney,  349;    Catlin  v.  2  potter  r.  Sanborn,   49  Ct.  452,  in 

Giaddiug,  4  Mason,  308;  Inhabitants  exposition  of  Ct.  Genl.  Stat.  p.  419, 

of  Turner  v.   Inhabitants  of    Buck-  §  19. 

flekl,  4  Greenleaf,  231.  s  Perrine  v.  Evans,  35  N.  J.  L.  221 : 

'  Munroe  v.  Frosh,  2  La.  Ann.  9G2;  "  Non-resident"  means   one  wlio  lias 

Eayne?).  Taylor,  10Id.72G;  Hagi^art  not  his  abode  in  tlie  State:  so  attacli- 

«.  Morgan,  5   N.  Y.  422;    Sandel  v.  nient  may  issue  against  the  property 

George,  18  La.  Ann.   52G;  Risewiclv;  of  tliose  wlio  dobusiness  intheState 

V.  Davis,  19Md.82;  Harvard  College  but  have  not  tlieir  abode  in  it.     See 

V.  Gore,  5  Pick.  379;  Frost  v.   Bris-  Bobbins  v.  Alley,  38  Ind.   553;  Mur- 

ben,  19  Wend.  11 ;  MaUer  of  Wrigley,  phy  v.  Baldwin,  41  How.  Pr.  270. 

4  Wend.  G08;   8  Id.   134;  Matter   of  MVallace  t).  Castle,  G8  N.  Y.  370: 

Thompson,  1  Weud.  43;    Morgan   v.  If  the  debtor  resides  in  another  Slate, 


NON-KESIDENTS.  41 

to  be  sued  by  attachment  in  bis  individual  capacity,  while  his 
principal  is  not  thus  liable  thougli  the  summons  be  served  on 
the  a<T^ent.  The  lessee  of  a  raih-oad  may  be  personally  amenable 
to  such  suit,  thougli  the  railroad  corporation  may  be  not 
liable.  1 

It  is  not  to  be  inferred  from  the  fact  that  the  general  office  of 
attachment  is  to  meet  the  want  of  a  creditor  when  ordinary  pro- 
cess will  not  avail  him,  that  therefore  it  is  invariably  true  that 
a  non-resident  cannot  be  proceeded  against  by  the  attachment 
of  his  property  when  he  is  temporarily  present  and  may  be 
summoned.  The  general  office  is  as  stated;  the  reason  which 
underlies  it  is  of  general  application;  the  non-resident  is  ordi- 
narily beyond  the  reach  of  process  so  that  the  general  rule  has 
such  reason  for  its  existence.  The  statutes  generally  make  no 
exception  in  case  of  the  temporary  presence  of  the  non-resident; 
and,  in  such  case,  attachment  lies  against  his  proj)erty  as 
though  he  were  in  a  foreign  jurisdiction. ^  Indeed,  the  present 
absence  of  the  non-resident  from  the  State  need  not  be  averred,  ^ 
unless  the  statute  couples  absence  and  non-residence  as  aground 
for  foreign  attachment, *  or  unless  the  statute  is  construed  to 
mean,  by  "non-resident,"  or  "not  a  resident,"  one  who  is  not 
at  home  though  having  a  residence;  one  who  is  not  literally 
within  the  jurisdiction  when  the  attachment  is  sued  out.  Un- 
der sijch  construction,  the  question  is  whether  the  debtor  is 
present  or  absent  rather  than  whether  he  is  a  resident  or  non- 
resident. ^ 

The  creditor  is  entitled  to  his  writ  when  he  has  laid  the 
ground  of  non-residence,  or  alleged  protracted  absence  such  as 
prevents  the  effectual  use  of  the  ordinary  process,  though  subse- 

he  is  not  to  be  deemed  a  resident  of  (Del.)   363;  Green   v.   Beckwith,   38 

New  York  because  lie  has  a  place  of  Mo.  384. 

business  there.                              '  ^  (jlark  v.   Arnold,   9   Dana,   (Ky.) 

1  Breed  ».  Mitchel,  48  Ga.  533:    A  305. 

non-resident   lesse   of  a  railroad   in  *  Fuller  v.  Bryan,  20  Pa.    St.  144; 

Georgia  which  may  be  sued  there,  is  Bainbridge   t.   Alderson,  2  Browne, 

yet  liable  to  be   proceeded  against  (Pa.)   51.     See  Scruggs  v.  Blair,  44 

by  attachment  like   other  non-resi-  Miss.  406 :  Attachment  in  equity, 
dents.  5  Hoggettv.  Emerson,  8  Kan.  263, 

2  Burcalow  v.   Trump,  1    Houston,  construing  Kansas  Code  Pro.  §  21. 


42  STATUTORY    AUTHORIZATION. 

qnent  events  may  show  that  the  debtor's  absence  M'as  not  for 
feiich  lencrth  of  time  as  the    atKant  had  believed  it  wonU]  be.^ 

o 

But  if  the  creditor  is  in  error  respecting  the  material  averment 
upon  which  the  attachment  is  issued,  if  he  makes  affidavit  that 
the  debtor  is  a  non-resident  when  the  contrary  is  the  case  in 
fact,  and  proceeds  to  give  publication  notice,  and  prosecutes  the 
case  to  judcrnient,  the  whole  proceeding  is  a  nullity.^ 

It  is  generally  true  that  the  accidental  presence  of  a  non- 
resident, (so  that  it  is  practicable  to  serve  him  with  summons 
and  thus  render  him  amenable  to  ordinary  process,)  does  not 
preclude  the  creditor  from  attaching.  The  debtor,  present 
temporarily  and  personally  served  with  process,  may  immedi- 
ately leave;  and,  if  the  attachment  of  his  pi-op3rty  could  not  be 
effected  nnder  the  circumstances,  what  is  to  prevent  liim  from 
taking  it  away  with  him?  The  spirit  of  the  attachment  laws, 
(and  generally  the  letter,)  allows  the  conservatory  writ  in  such 
a  case.  But,  with  regard  to  this,  as  to  all  other  things  con- 
nected with  attachment,  the  statute  of  each  particular  State 
must  govern  within  its  own  borders. 

Sec.  3.    Absentees. 

What  constitutes  such  absence  as  to  amount  to  non-residence 
within  the  meaning  of  the  attachment  laws,  depends  much 
upon  the  intention  of  the  debtor.*  Whether  his  intention  is 
to  maintain  his  residence  or  abandon  it  may  be  infei-red  from 
protracted  absence  with  continued  silence  as  to  his  purpose,  and 
total  neglect  of  his  affairs  within  the  State;*  or  from  his  own 

^  Leathers  v.  Cannon,   27  La.  Ann.  ground  that  the  debtor  has  porman- 

522:     Attachment  sustained  against  ently  left  the  State  of  Louisiana,  the 

the  property  of  an   absentee   travel-  decree  is  void  if  the  debtor  is  really 

ling  abroad  who  had  designed  to  be  a  resident,  and   has  not  been  cited 

absent  from   the   State  two  years  or  and  has  not   appeared   in  the   suit, 

more,   and  who   left  no  agent,   and  Succession  of  Durand,  2-1  La.  Ann. 

could   not  be  reached   by  ordinary  352. 

process;  and  his  return  at  an  earlier  *  Wells  v.  People,  44  111.  40;  Mor- 

date  than  he  had   designed  was  held  gan   «.  Avery,  7  Barb.  65G;     Swaney 

not  to  affect  the   process  issued  be-  v.  Hutchins,  13  Neb.  2GG. 

lore  his  return.  *  Walker   v.    Barrelli,  32   La.  Ann. 

2  Though   an   attachment  suit    be  4G7:  Intent  to  abandon  domi  ile  was 

prosecuted     to    judgment     on    the  inferred  from  ten  years' absence  from 


ABSENTEES. 


43 


declarations  that  lie  lias  left  the  State  permanentlj  or  that  his 
home  and  that  of  his  family  are  in  another  State  ;^  or,  on  the 
other  hand,  from  such  circumstances  as  that  his  family  have 
not  removed,  that  summons  may  be  left  with  them  so  as  to  bind 
him,  that  his  intention  is  to  return,  etc. ^  Acts  indicating  the 
intent  of  permanent  removal  oittweigli  the  debtor's  avowals  to 
the  contrary. 3  Such  intent  cannot  properly  be  inferred  from 
the  fact  of  a  temporay  absence;  and  that  alone  constitutes  no 
ground  for  attachment.  ^  Even  though  a  resident  may  design 
to  remove  permanently  from  the  State,  and  may  be  absent  on 
the  business  of  looking  up  a  new  home  in  another  jurisdiction, 
his  property  does  not  therefore  become  immediately  liable  to 
attachment  as  that  of  a  non-resident,  since  his  old  home  is  not 
yet  relinquished  and  ordinary  process  may  reach  him  there. ^ 
While  a  brief  absence,  coupled  with  tacts  indicating  that  resi- 
dence M'ithin  the  State  has  been  abandoned,  may  justify  attacli- 


the  State  by  the  debtor  without  com- 
municating his  intentions  or  where- 
about or  anytliing  concerning  fiis 
property  or  its  administration ;  and 
the  attachment  of  his  property  as 
that  of  a  non-resident  was  sustained. 

J  Loder  v.  Littlefield,  39  Mich.  512: 
Property  deemed  subject  to  attach- 
ment as,  that  of  a  non-resident,  when 
tlie  owner  has  declared  that  liis  home 
is  in  another  State,  and  testifies  that 
his  wife  owns  a  house  and  lives 
there,  and  that  for  years  he  has  fre- 
quently visited  her  there.  Also: 
Farrow  v.  Barker,  3  B.  Mon.  (Ky.) 
217 ;  Naylor  v.  French,  4  Yeates  241. 

2  Bowers  v.  R"ss,  55  Miss.  213: 
The  defendant  may  show  that  he  still 
has  his  domicile  in  Miss,  with  intent 
to  return  to  it,  and  keeps  an  establish- 
ment within  the  S^ate  where  his 
family  resides  and  where  process  may 
be  served  so  as  to  bind  him,  though 
he  has  a  fixed  abode  in  another  State 
for  an  indefinite  period. 

=*  Wolf  V.  McGavock,  23   Wis.  51G; 


New  Orleans  Canal  and  Banking  Co. 
V.  Comly,  1  Rob.  (La.)  231 ;  Beeves  v. 
Comly,  3  Id.  363;  Simons  ■i).  Jacobs, 
15  La.  Ann.  425. 

*  Alston  V.  Newcomer,  42  Miss.  186 ; 
Fuller  V.  Bryan,  20  Pa.  St.  144;  Man- 
dell  V.  Peet,  18  Ark.  236.  Matter  of 
Chipman,  1  Wend.  66;  Matter  of 
Warner,  3  Wend.  424;  Burgess  v. 
Clark,  3  Ind.  250;  Havis  v.  Taylor,  13 
Ala.  324;  Watson  v.  Pierpont,  7  Mar- 
tin, 413;  Offutt  «.  Edwards,  9  Bob. 
(La.)  90;  Fitch  «.  Waite,  5  Ct.  117; 
Matter  of  Schroeder,  6  Cow.  603; 
Matter  of  Fitzgerald,  2  Caines,  318; 
Pitts  «.  Boroughs,  6  Ala.  733;  Walcott 
v.  Heudrick,  6  Tex.  406;  Ross  v. 
Clark,  32  Mo.  296;  Boggs  v.  Bind- 
skotr,  23  111.66;  Kingsland  «.  Wor- 
shani,  15  Mo.  657 ;  Ellington  i\  Moore, 
17  Mo.  424;  Boardman  v.  Bickford, 
2  Aikens,  345;  Oliver  v.  Wilson,  29 
Ga.  642. 

5  Pfoutz  V.  Comford,  36  Pa.  St.  420; 
Smith  V.  Story,  1  Humph.  420. 


44  STATUTORY    AUTHORIZATION. 

ment/  a  very  protracted  stay  from  the  State,  even  extended  for 
years,  ip  not  necessarily  a  fact  supporting  the  charge  of  non- 
residence,  since  the  absentee  may,  all  the  time,  maintain  a  place 
of  residence  within  the  State  at  which  ordinary  process  may  be 
legally  served, 2 

There  is,  as  a  general  rule,  no  fixed  length  of  absence  which 
will,  of  itself,  create  the  presumption  of  n(jn-resideney,  within 
the  meaning-  of  the  attachment  laws — the  impoi-tant  question 
being  whether  ordinary  process  can  reach  the  debtor  at  all 
times  by  service  at  some  place  within  the  State  where  the  suit 
is  brought.  3  So  long  as  there  is  such  a  place,  there  can  be  no 
reason  why  the  extraordinary  process  should  be  invoked  on  the 
ground  of  absence  or  non-residency,  unless  there  is  statutory 
enactment  makino;  absence  alone  a  leo:al  cause  for   attachins:. 

O  rt  o 

What  matter  if  the  absentee  is  acquiring  or  has  acquired  a 
residence  abroad?  He  may  have  more  than  one  residence;  and 
therefore  it  cannot  be  inferred,  because  he  has  established  one  in 
another  State  or  country  that  he  has  abandoned  the  place  where 
service  may  be  had  upon  him  in  the  State  where  the  suit  against 
him  is  instituted.  On  the  contrary,  absence  from  the  State, 
even  with  intent  to  retui-n,  and  when  no  residence  is  acquired 
or  is  being  acquired  elsewhere,  may  render  a  debtor  liable  to 
have  his  property  attached  as  that  of  a  non-resident,  when  the 
circumstances  are  such  that  the  creditor  is  cut  off  from  the 
benefit  of  ordinary  process  to  make  his  money. ^  The  debtor 
must  be  so  situated  at  the  time  the  suit  is  to  be  served  that  he  can 
be  reached  at  some  place  of  residence,  if  he  would  avoid  Uie" 
extraordinary  process.     It  is  at  that  jjarticular  time — when  the 

J  Morgan  v.   Nunes,  54  Miss.  308;  *  Ludlow  i).  Rarasey,  11  "Wall.  581. 

Wheeler  v.  Cobb,  75  N.  C.  21 ;  Taylor  Held  that  property  could  be  attached 

«.  Knox,   1   Dall,   158;  McCollem  v.  as  that  of  a  non-resident  because  of 

White,  2:5  Ind.  43;  Farrow  v.  Barker,  its  owner  being  out  of  the  State  and 

3  B.  Mon.  217.  in     the     Confederate   army.      Al^o: 

2  Egau   V.  Lumsden,  2  Disney,  (O.)  Foreman    ■«.     Carter,   9    Kan.     G74. 

168.  Contra:    Haynes  v.   Powell,    1    Lea, 

^  In  Ky.,  Ark.  and  Col.  four  months'  (Teun.)  347.     But  not  if  he  is  in  the 

absence  is  a  ground   for  attachment;  Federal  army:  Tibbitts  i\  Townsend, 

and     in     Michigan,    three    months'  l")  Abb.  Pr.  221 ;  Thompson's  Case,  1 

absence  and  non-residence.  Wend.  43 


ABSENTEES.  45 

attachment  proceeding  is  begun — tliut  he  must  be  a  resident  if 
he  wouUl  avoid  such  process. i  It  would  not  avail  him  to  be- 
come a  resident  at  a  later  period;*  to  show  that  he  was  absent 
without  a  place  in  the  State  for  service  when  his  goods  were 
attached  but  that  he  returned  soon  thereafter;  or  that  he  is,  at 
the  time  of  the  trial,  or  the  traverse  of  the  attachment,  a  resi- 
dent of  tlie  State  with  the  design  of  remaining  permanently. 

As  in  the  case  of  a  new-comer,  acquiring  residence,  the 
animus  of  the  debtor  is  of  importance  in  deciding  whether  or 
not  he  is  a  resident,  so  when  a  person  leaves  the  State,  his  intent 
is  often  decisive  of  the  question  whether  or  not  he  has  abandoned 
his  residence  therein.  As  previously  remarked,  in  another  con- 
nection, one  immediately  becomes  a  non-resident  if  he  leaves  his 
State  with  the  design  of  becoming  such,^  though  the  design  has 
been  held  not  to  be  decisive  on  this  question,  until  accompanied 
with  tlie  act  of  leaving;  until  he  has  passed  beyond  the  State 
bounds.  3  But  if -he  has  broken  up  his  home,  so  that  process 
can  no  longer  be  served  there  and  be  binding  upon  him,  must 
his  creditor  be  confined  to  personal  service  upon  his  debtor  as 
the  only  means  of  reaching  him?  The  case  is  not  that  of  an 
absconding  debtor;  the  plaintiff  connot  truthfully  set  up  the 
ground,  in  his  atlldavit,  that  the  defendant  is  running  away  to 
avoid  process,  concealing  himself,  hiding  his  goods,  etc.,  in  fraud 
of  creditors.  The  defendant  avowedly  means  to  abandon  his 
residence,  which  he  may  lawfully  do,  and  has  broken  up  his 
home,  and  is  openly  travelling  towards  the  State  bounds  to 
depart  permanently:  wdiy  should  not  the  extraordinary  process 
be  invokable  on  the  ground  of  non-residence?^ 

It  is  conceivable  that  a  person  may  never  have  been  out  of 
his  native  State  yet  have  no  fixed  place  of  abode  within  it  where 

1  Clark  «.  Arnold,  9  Dana,  305.  man,   1     Dall.    480;    Baiubriclge    v. 

2  Moore    «.    Holt,   10  Gratt.   284 ;  Alderson,  2  Browne,  51 ;  Wheeler  v. 
Balliuger  v.  Lautier,  15  Kan.  608.  Degnan,  3   Nott   &  McC.  323;  Ship- 

3  Balliuger  v.  Lautier,  15  Kan.  G08 ;  man  v.  Woodbury,  2  Miles,  G7 ;  Reddy 
Kugler  13.    Shreve,   28   N.J.  L.  129;  ».  Bego,  33  Miss.  529. 

Kingsland  v.  Worsham,  15  Mo.  657;  *  See,  favoring   this  view,  Clark  v. 

Temples.  Cochran,  13  Id.  116;  Smith  Ward,   12   Gratt.    440;    Spalding    v. 

V.  Story,  1    Humph.  420;  Stratton  v.  Simms,  4    Met.  (Ky.)  285.     See  also 

Brigham,  2  Sueed,  420;  Lyie  v.  Fore-  Moore  v.  Holt,  10  Gratt.  2S4. 


40  STATUTOKY    AUTHORIZATION. 

ordinary  ])rocess  may  be  legally  served  upon  hini  when  lie  can- 
not be  personally  served  with  summons.  His  business  may 
require  him  to  travel  constantly  from  county  to  county,  to 
sojourn  at  hotels  for  but  a  few  hours  at  a  time,  so  that  no  particu- 
lar place  could  be  called  his  home.  Whether,  under  such 
circumstances,  his  property  would  be  liable  to  attachment  on 
the  ground  of  non-residence,  must  depend  upon  the  attachment 
statute  of  his  State,  (as  indeed,  in  all  other  cases,)  but  there 
would  seem  to  be  no  reason,  on  general  principles,  why  his 
property  ought  not  be  made  liable  to  attachment. 

Only  by  his  property  can  a  non-resident  debtor  be  reached 
and  made  to  pay.  ^  If  he  is  temporarily  present,  a  summons 
may  reach  him,  to  be  sure;  but  of  what  avail  would  that  be  if 
his  property  is  not  attached,  or  if  he  has  none  within  the  State 
to  be  attached?  If  he  has  residence  in  another  state  or  country, 
he  may  plead  to  the  jurisdiction  of  the  State  court  where  the  or- 
dinary suit  is  brought.  Or,  he  could  readily  return  to  his  home 
and  take  his  property  wath  him,  so  that  there  would  be  nothing 
left  within  the  jurisdiction  upon  which  the  judgment  could  be 
executed.  The  necessity  therefore  for  the  use  of  the  writ  of 
attachment,  by  which  his  property  is  conserved  and  h(i:l  under 
a  hypothetical  lien  till  judgment,  is  obvious,  though  the  non- 
resident debtor  be  personally  served  with  summons.  Ordinary 
process,  though  it  may  be  served  in  such  case,  would  not  prove 
effectual;  and  hence  the  extraordinary  is  permitted  and  author- 
ized. 

The  reader  will  readily  perceive  that  it  would  be  almost  an 
endless  task,  were  the  many  curious  facts  of  cases,  involving 
the  attachability  of  non-residents'  property,  to  be  given  by  way 
of  illustration  in  a  text-book.  It  seems  better  to  rely  upon  the 
general  rule  that  the  facts  must  be  such  as  to  render  the  con- 
servative process  necessary,  under  the  statute  provision.  2 

1  Winstonley  ?;.  Savage,  2  McCoYd,  (N.  Y.)  681;  McKenzie  v.  Bentley, 
cli.  (S.  C.)  425.  30  Ala.  139 ;  Coosa  River  St.  B't.  Co. 

2  Branch  Bank  v.  McDonald,  22  1).  Barclay,  30  Ala.  120;  Tallemon  v. 
Ala.  474;  Zerega  v.  Benoist,  7  Robt.  Cardenas,  14  La.  Ann.  509;  Sandel  •«. 
(N.  Y.)  199 ;  Knox  v.  Mason,  3  Robt.  George,  18   La.  Ann.  520 ;  Clark  v. 


ABSCONDING    DEBTORS.  47 

In  every  State,  the  writ  of  attacliment  may  be  sued  out  against 
a  non-resident.  It  is  novvliere  required  tliat  the  athant  should 
swear  that  the  debtor  has  become,  or  continues  to  be,  a  non- 
resident for  the  purjiose  of  hindering  or  defrauding  the  creditor, 
or  of  preventing  the  collection  of  the  debt. 

No  charge  or  implication  of  fraud,  on  the  part  of  the  non- 
resident need  appear  in  the  affidavit  made  for  the  attachment  of 
his  property.  He  may  be  honest,  admitted' by  the  plaintiff  to 
be  such,  yet  liable  to  have  his  property  attached  because  the 
plaintiff  can  proceed  effectively  in  no  other  way.  It  is  solely 
because  he  cannot  be  summoned  that  his  property  is  attached; 
his  accidental  presence,  when  he  may  be  summoned,  forming  no 
exception,  as  has  already  been  shown. 

Sec.  4.    Absconding  Debtors— including  those  who  secret© 
or  conceal  themselves  to  avoid  process. 

The  statutes,  though  employing  varying  expressions,  are  gen- 
erally uniform  in  authorizing  the  attachment  of  the  property  of 
a  debtor  who  endeavors  to  avoid  the  process  by  absconding  or 
by  concealing  or  secreting  himself.  Some  of  the  statutes  make 
each  of  these  methods  of  avoidance  a  distinct  ground  for  at- 
tachment; others  connect  the  latter  two,  and  keep  the  first  dis- 
tinct; others  specify  but  one  of  the  three;  but  all  unite  in  giving 
the  remedy  when  the'  intentional  avoidance  of  process  by  hiding 
or  abs'couding,  to  avoid  ordinary  process,  is  made  to  appear. 
In  States  where  attachment  is  an  ordinary  civil  process  in  all 
cases  upon  contract  or  for  debt,  no  special  statute  authorization, 
based  upon  this  ground,  may  be  found;  but  they  constitute  no 
exception,  since  attachment  will  there  lie  against  the  property 
of  an  absconding  or  secreted  debtor,  under  the  common  practice, 
though  not  there  a  special  ground  of  attachment. 

Notwitlistanding  the  general  uniformity  of  the  statutes,  there 

Pratt,  19  Id.  103;  Surty  «.  Skilton,  19  Dall.  305,  note,  (in  which  it  was  said 
Id.  136 ;  Redwood  v.  Consequa,  3  that  the  effects  of  an  Americaa  con- 
Browne,  (Pa.)  63;  Allen  "■>.  Wright,  sul,  residing  abroad,  were  liable  to 
134  Mass.  347 ;  Brolaskey  «.  Landers,  foreign  attachment.)  Spalding  v. 
2  Miles,  (Pa.)  371 ;  Shugart  v.  Orr,  5  Simms,  4  Met.  (Ky.)  385 ;  Railroad  v. 
Yerg.   193;    Caldwell  v.  Barclay,  1  People,  31  Ohio  St.  543. 


48  STATUTORY    AUTIIOKIZATION. 

are  minor  differences:  some  treating  sibsconding  as  rnmiing- 
a way  from  the  State  to  avoid  process,  while  others  treat  it  as 
running-away  from  the  county,  or  the  usual  place  of  abode. 

Nearly  every  State  statute  on  attachment  requires  that  tlie 
creditor,  when  charging  that  his  debtor  has  absconded  or  con- 
cealed himself,  or  is  about  to  do  so,  shall  qualify  the  charge 
with  the  words,  "  so  that  ordinary  process  cannot  be  served,"  or 
equivalent  words.  "With  intent  to  escape  process,"  "  to  elude 
summons,"  "  so  that  ordinary  process  cannot  be  effective,"  "  to 
avoid  and  defraud  creditors,"  etc.^  are  phrases  frequently  found 
in  the  statutes,  which  may  be  instanced,  as  equivalents  of  the 
qualifying  words  above  mentioned. 

The  gist  of  the  charge  is  that  the  debtor,  by  his  own  act,  has 
rendered,  or  will  render  ordinary  process  ineffectual.  And  if 
this  is  true,  it  would  matter  little  whether  he  has  escaped  from 
the  State  or  from  his  county,  unless  the  former  is  necessary  to 
the  granting  of  the  writ  under  any  particular  statute.  Nor 
would  it  matter  that  he  has  a  place  of  usual  abode  where  a  sum- 
mons ma}^  be  left;  for,  if  it  is  true  that  he  is  hiding  himself  or 
running  off,  to  avoid  summons,  it  is  quite  likely  that  he  Avould 
also  run-off  his  property,  or  dispose  of  it  in  some  way,  before 
ordinary  process  could  result  in  judgment  and  execution.  The 
law  authorizes  attachment  on  the  o;round  of  fraudulent  abscond- 
ing,  etc.,  even  though  the  absconding  debtor  should  be  reached 
bv  summons,  upon  the  required  showing  that  ordinary  process 
would  not  certainly  prove  effective. 

When  the  application  is  made  and  the  writ  granted,  it  cannot 
be  known  certainly  that  summons  will  not  reach  the  debtor.  Tt 
is  highly  probable  that  it  will  reach  him  personally,  when  the 
charge  is  that  he  is  about  to  abscond  or  conceal  himself.  The 
legislator  does  not  mean  to  confine  the  remedy  of  domestic  at- 
tachment to  cases  where  the  defendant  cannot  be  personally 
served,  but  to  those  in  which  ordinary  process  is  not  so  good  a 
remedy  as  the  extraordinary. 

To  entitle  the  plaintiff  to  an  attachment  on  the  ground  that 
his  debtor  has  absconded,  it  is  not  ordinarily  required  of  him 
first  to    obtain  an  officer's  return    that  the   debtor  cannot  be 


ABSCONDING    DEBTORS.  49 

found.  1  When  such  return  is  required,  tlie  practice  is  excep- 
tional. 2  Tliere  may  be  absconding  without  leaving  the  State. 
Kemoving  from  home  with  the  design  of  avoiding  summons 
and  of  defrauding  the  creditor  is  what  is  generally  understood 
by  absconding.^ 

Mere  removal  to  another  cou"nty,  without  fraudulent  intent, 
is  not  a  ground  for  attachment, ^  though  it  has  been  held  that  a 
non-resident  traveller  passing  through  a  county  is  removing  there- 
from so  as  to  be  liable  to  have  his  effects,  which  he  is  taking 
with  him,  attached  on  the  ground  "  that  he  is  actually  removing 
from  the  county." ^  Permanent  removal  is  ordinarily  what  the 
law  means  when  authorizing  the  ground.  ^  It  is  not  sufficient  to 
swear  that  the  debtor  is  already  in  another  State  and  is  about 
to  sell  or  remove  his  property,  when  this  ground  is  made  the 
basis  of  the  attachment. '' 

In  Kentucky  it  was  held  that  in  an  action  for  the  recovery  of 
money,  against  several  partners,  when  some  one  of  them  has 
de])«rted  from  the  State  with  intent  to  defraud  his  creditors,  or 
has  ccmcenled  himself  so  that  a  summons  cannot  be  served  u]xjn 
him,  the  plaintiff  is  entitled  to  an  attachment  against  the  pru])- 
erty  of  all  the  defendants.*  In  New  Jersey,  held  that  an  at- 
tachment will  not  lie  against  an  absent  or  absconding  joint- 
debtor  or  partner,  if  one  or  more  of  the  joint-debtors  or  partners, 
liable  for  the  same  debt,  reside  within  the  State.  ^ 

Secreting  himself,  hiding    from  the  creditor  or  the    officer 


*  North  V.  McDonald,  1  Biss.  57.  with  such  intent,  though  he  may  not 

2  Rev.  Stat,  of  Rhode  Island,  Ch.  have  left  the  State.  On  the  same 
173;  Rev.  Stat,  of  Delaware,  Ch.  subject,  consult  Mandell -y.  Peet,  18 
104;  Barney  v.  Patterson,  6  Har.  &  Ark.  236;  Branson  v.  Shinn,  13  N.  J. 
J.  (Md.)  183.  L.  250;  City  Bank  v.  Merritt,  Id.  131 ; 

3  Stouffer  V.   Niple,   40   Md.   447:  Bennett «.  Avaut,   2   Sneed,    (Tenn.) 
The    statute    prescribing    that  the  152 ;   Fitch  v.  Waite,  5  Ct.  117. 
debtor  who    shall  "  secretly  remove  *  Meek  ».  Fox,  42  Miss.  513. 
himself  from  his  place  of  abode  with  ^  Johnson  v.  Lowry,  47  Ga.  560. 
intention  to   evade   the   pajmient   of  ^  Warder  v.    Thrilkeld,   52   Iowa, 
his  just  debts,  shall  be  considered  as  134. 

having  absconded,"    (Md.  Code,  Art.  '  State  v.  Morris,  50  Iowa,  203. 
10,  §  3,)  is  construed  to  entitle  the  *  Mills  v.  Brown,  2  Met.  404;  Dun- 
creditor  to  the  writ  of  attachment  can  v.  Headley,  4  Bush,  45. 
when  the  debtor  has  left  his   home  ®  Barber  v.  Robeson,  15  N.  J.  L.  17. 

4 


50  STATUTORY    AUTHORIZATION. 

who  is  to  serve  process,  going  from  home  to  avoid  summons, 
shutting  himself  up  at  home,  and  all  such  acts  of  a  debtor  are 
included  in  the  general  terra,  "absconding;"  and  it  is  not  nec- 
essary to  the  right  of  attaching  that  he  should  have  run 
away  from  the  State.* 

The  circumstances  are  rare  under  which  one  who  is  not  a 
resident  can  be  deemed  an  absconder,  2  However,  if  one  is  a 
resident  in  such  a  sense  that  he  is  subject  to  ordinary  process, 
yet  seeks  to  avoid  it  by  secreting  himself,  he  might  be  prop- 
erly charged  with  absconding.  ^ 

It  is  not  required  of  the  attaching  creditor  that  lie  should 
charge  removing  or  absconding  for  the  purpose  of  eluding  his 
summons,  or  defrauding  himself;  the  charge  of  removing  to 
defraud  creditors  is  sufficient,  as  a  general  rule,  under  the  sev- 
eral statutes.  Removal  from  the  county  to  elude  one  creditor 
justifies  attachment  by  another  creditor.^  If  the  debtor  has 
shown  himself  untrustworthy,  and  capable  of  trying  to  evade 
the  law  and  avoid  the  payment  of  one  just  debt,  there  is  good 
reason  for  issuing  the  conservative  writ  to  secure  another.  But 
where  the  statute  requires  the  creditor  to  swear  that  the  remov- 
ing, secreting,  absconding,  etc.,  from  the  place  of  abode  is  to 
injure  himself,  and  to  elude  him,  and  evade  the  law  with  respect 
to  his  claim,  the  averments  must  be  made  and  sworn  accord- 
ingly. ^ 

]No  injustice  need  be  done  the  defendant,  since  he  is  secured 
against  loss, — pecuniary  loss,  at  least, — by  the  creditor's  bond; 
and  he  is  at  liberty  to  traverse  the  affidavit,  and  may  deny  that 
he  has  illegally  removed  himself  from  his  abode  or  from  his 
county,  (as  the  charge  may  be,)  or  that  he  is  about  to  go;  or, 

1  Ives  V.  Curtis,  2  Eoot,  (Ct.)  133;  4  Watts,  (Pa.)  422;  Wray  v.  Gilmors, 

Fitch  ».  AVaite,  5  Ct.  117;    House   v.  1  Miles,  (Pa.)  75;  Boggs  «.  BiudskoflF, 

Hamilton,   43    Ills.    185;    Young   v.  23  111.  ()6. 

Nelson,  25  111.  5G5 ;  Nutter  v.  Connet,  ^  Sbugart  v.  Orr,  5  Yerger,  192.  See 

3   B.   Mon.   199;    Dunn  v.  Salter,  1  Matter   of    Schroeder,   6  Cow.   C03; 

Duv.  (Ky.)  342;   Field  v.   Adreon,  7  Matter  of  Fitzgerald,   2    Caines,  318. 

Md.  209;   Fitzgerald's   Case,   2   Cai.  » ]viitic]ie^,i.ook  v.  Ames,  5  Stewart 

(N.  Y  )  318 ;  Jemel  v.  Howe,  8  Watts,  &  Porter,  158. 

(Pa.)  144;    Tliurneyssen  v.  Voathier,  *  Sherrill  v.  Beach,  37  Ark.  5G0 


FRAUDULENT    DEBTORS.  51 

admitting  liavino;  gone,  lie  may  aver  that  his  absence  was  tem- 
porary and  Avithout  fraudulent  design  ;i  for  "removal" 
means  permanent  removal. ^ 

•  Most  of  the  statutes  are  rather  vague  in  their  use  of  the 
phrase,  "  about  to  abscond."  About  to  do  so — when?  Is  it  to- 
day, to-morrow  or  next  week?  Is  it  at  some  time  before  a  judg- 
ment lien  can  be  obtained  by  following  up  ordinary  process? 
Perhaps  no  more  definite  period  can  be  fixed  upon,  by  way  of 
construing  the  phrase,  than  that  last  suggested  by  inquiry.  If 
the  debtor  is  about  to  go  before  the  ordiiuiry  judgment  lien  can 
be  created  in  due  course,  there  is  reason  for  creating  the  hypo- 
thetical attachment  lien  at  once.^ 

Absconding  requires  the  act  as  w^ell  as  the  aninn/s/  though 
being  "a1)out  to  abscond  "  is  complete  without  action.-*  Tiie 
intent,  being  difficult  of  direct  proof,  may  be  inferred  from  cir- 
cumstances;  ^  and  the  defendant  is  entitled  to  the  credit  of  cir- 
cumstances in  his  favor.  ^ 

V 

Sec.  5.    Fraudulent  Debtors— disposing  of  their  property 
to  avoid  their  creditors. 

The  statutes,  with  great  uniformity,  accord  the  attachment 
remedy  when  the  debtor  seeks  to  elude    the  effect  of  ordinary 

1  Klepper  v.  Powell,  6  Hpisk.  though  the  debtor  may  not  mean  to 
(Tenn.)503;    Gill  «.  Wyatt,  Id.  88.  carry    out    his    design    for    several 

2  Warder  v.    Thrilkeld,   53   Iowa,      weeks  or  months. 

134.  *  See,  on  absconding,   and   "about 

3  Myers  «.  Farrell,  47  Miss.  281:  to  abscond,"  and  the  requisites  for 
Held  that  the  leading  purpose  of  the  charging  these  grounds:  Bennett 
statute  granting  attachment  when  v.  Avant,  2  Sneed,  (Tenn.)  152. 
debtors  are  about  to  remove  their  *  Gibson©.  McLaughlin,  1  Browne, 
persons  or  property  out  of  the  State  292;  Ross  v.  Clark,  32  Mo.  290; 
with  intent  to  evade   the  payment  of  Young  v.  Nelson,  25  111.  565. 

debt,  is  to  authorize  proceedings  in  ®  Myers  v.  Farrell,  47  Miss.  281 ; 
rem;  and  that  any  attempt  to  fix  a  Boardman  v.  Bickford,  2  Aikeus, 
definite  rule  as  to  the  time  within  315;  Matter  of  Warner,  3  Wend.  424; 
which  the  inquiry  is  to  be  limited  Havis  t).  Taylor,  13  Ala.  324;  Bur- 
would  be  hurtful  to  practice  and  gess  v.  Clark,  3  Ind.  250.  And  see 
might  defeat  the  remedy  in  meri-  further:  Morgan  v.  Avery,  7  Barb, 
torious  cases.  All  that  is  necessary  Gi6;  Simons®.  Jacobs,  15  La.  Ann. 
is  that  the  ground  of  attachment  425 ;  Reeves  v.  Comly,  3  Rob.  (La.; 
shall  exist  when  the  writ  is  sued  out.  363 ;  N.  O.  Canal  &  Banking  Co.  v. 
If  the  fraudulent  design  to  remove  Comly,  1  Id.  231 ;  Bennett  v.  Avant, 
then    exists,     attachment    will    lie,  2  Sneed,  152. 


52  STATUTORY    AUTnORTZATION. 

process  by  secreting,  removing  or  otherwise  fraudnlontly  dis- 
posing of  his  property  within  tlie  State,  or  by  removing  it  out 
of  tlie  State  so  that  the  creditor  is  in  danger  of  losing  his  claim 
or  of  being  necessitated  to  sue  in  another  State.  The  writ  is 
accorded,  whether  the  debtor  has  done  snch  acts  or  is  about  to 
do  them  for  the  pnrpose  stated.  The  authorizations  vary,  in 
different  states;  bnt  the  ground,  that  the  debtor  is  about  to  con- 
ceal or  remove  or  dispose  of  his  property  to  defraud  the  creditor, 
is  almost  nniversal.  These  general  terms  include  the  frandulent 
assignment  of  property,  withholding  it,  simulated  sales  of  it, 
and  like  acts  tending  to  defeat  the  usual  course  of  justice. 

Difference  will  be  noted  between  the  debtor's  fraudulent 
removal  or  concealment  of  himself,  and  his  fraudulent  removal, 
concealment  or  disposal  otherwise  of  his  property.  The  former 
has  been  already  considered.  Both  grounds  belong  to  domestic 
attachment;  and  they  together  constitute  all  the  unexceptional 
grounds,  though  the  statutes  usually  subdivide  them  under  sev- 
eral different  heads,  such  as  concealing,  removing,  assigning, 
withholding,  disposing,  etc.,  in  fraud  of  creditors. 

In  all  of  these  authorizations,  the  gist  of  the  cliarge  is  that 
ordinary  process  is  rendered  inadequate  or  precarious.  Such 
charge  is  not  supported  by  the  mere  equivocations  of  the  debtor, 
failing  in  promises  to  make  payment,  threats  to  make  a  prefer- 
ential assignment,  and  similar  reprehensible   conduct.^ 

The  charge  of  the  debtor's  removing  property  to  avoid  the 
execution  of  such  judgment  as  may  be  obtained  upon  ordinary 
process,  is  not  confined  to  removal  from  the  county  in  which  an 
absconding  creditor  last  resided,  but  it  will  hold  good  if  the 
removal  was  from  the  county  in  which  the  attachment  suit  is 
instituted.  3     Nor  is  the  charge  of  intent  to  remove  confined  to 

J  Durr  V.  Jackson,  59  Ala.  203:  to  clefra'd  creditors.  Evans  «.  War- 
Fraudulent  withholding  property  ner,  21  Hun.  (N.  Y.)  574:  Intent  to 
from  ordinary  process  is  inferrable,  dispose  of  property  fraudulently  is 
not  from  a  mere  refusal  to  pay  debts,  not  to  be  inferred  from  a  threat  by 
but  from  an  evil  intent  to  delay  the  debtor  that  he  will  make  a  pref- 
creditors.  -Parsons  v.  Stockbridge,  erenlial  assignment. 
42  Tnd.  121 :  False  promises  to  pay  ^  Ketchum  v.  Vidvard,  4  Thomp. 
do  not  tend  to  show  that  the  debtor  &  C.  (N.  Y,)  138:  Removal  of  prop- 
was  about  to  dispose  of  his  property  erty  from   the   county  in  which   at- 


FRAUDULENT    DEBTOKS. 


53 


any  particular  time,  provided  the  accomplisliinent  of  the  intent 
wuukl  defeat  the  legitimate  result  of  ordinary  process;  that  is, 
if  the  defendant  is  substantially  charged  with  the  design  of 
putting  his  property  beyond  the  reach  of  the  creditor  before  he 
can  obtain  an  ordinary  judgment  and  seize  it  under  execution, 
it  will  be  a  sufficient  compliance  with  the  statutory  require- 
ment. ^  The  design  must  be  charged  as  existing  at  the  time 
the  affidavit  is  made,  in  order  to  a    strict    compliance  with  the 

statute  authoriziup-  attachment.  ^ 
o 

The  charge  of  removing,  assigning  or  otherwise  disposing  of 
property,  or  intent  to  do  so,  need  not  be  made  with  reference  to 
all  of  the  debtor's  creditors,  nor  to  all  of  his  property.  It  is 
sufficient  if  the  design  is  to  fraudulently  dispose  of  a  part  of 
the  property,  and  if  it  is- to  defraud  the  phuntiff  only.  3  How- 
ever, wliere  the  statute  requires  that  the  charge  of  fraudulent 
disposition  of  property  shall  be  qualified  with  the  clause, 
"Without  leaving  sufficient  to  satisfy  the  plaintiff's  demand;" 
or,  "  So  as  to  defeat  ordinary  process;"  or  like  provisions,  it 
W'Ould  not  be  a  compliance  with  the  law  to  charge  merely  that 
the   defendant   has    fraudulently    assigned^   or  removed,  or  is 


tachment  is  applied  for  is  suificieut 
ground  against  au  abscondiug  debtor 
— not  necessarily  removal  of  it  from 
the  county  where  the  debtor  last  re- 
sided— when  the  proceeding  is  under 
§  g  34-39  of  Laws  of  1831,   Ch.  300. 

1  Fraudulent  design  to  remove 
propert}'  from  the  State  is  a  ground 
for  attachiug  it,  though  the  debtor 
may  not  mean  to  remove  it  for  some 
weeks  or  mouths.  The  time  must 
not  be  too  closely  circumscribed.  It 
is  sulficient  if  the  ground  exists 
when  the  writ  is  issued.  The  pur- 
pose of  the  legislator  was  to  author- 
ize proceedings  in  rem.  Myers  ». 
Farrell,  47  Miss.  281. 

2  Lewis  V.  Kennedy,  3  Gr.  Greene, 
(Iowa,)  57;  Warner  ®.  Everett,  7  B. 
Mou.  2G3.  Construction  of  attach- 
ment laws  should  be  liberal,  respect- 


ing the  application  of  the  remedy; 
strict,  respecting  the  grounds  for 
issuing  writs  of  attachment.  Jack- 
son  V.  Burke,  4  Heisk.  (Tenn.)  610. 
Strict  construction:  Van  Norman 
v.  Jackson  Circuit  Judge,  45  Mich. 
204. 

3  In  Oregon,  if  the  debtor  is  about 
to  dispose  of  his  goods  to  defraud 
the  plaiutift',  attachment  against 
them  will  lie,  though  no  fraud 
against  creditors  in  general  may  be 
designed.  Haiglette  v.  Leake,  Deady, 
4G'J.  In  Kansas,  the  assignment  of 
any  portion  of  the  debtor's  property 
to  defraud  creditors  is  a  ground  for 
attachment.  Johnson  v.  Lauglilin, 
7  Kan.  359.  Taylor  v.  Myers,  34  Mo. 
81. 

*  Hinds  V.  Fagebauk,  9  Minn.  68. 


54  STATUTORY    AUTIIOTIIZATION. 

about  to  assign  or  remove,  or  intends  to  assign  or  remove  a  part 
of  his  property. 

An  assignment  by  a  debtor  may  bo  general  and  illegal  yet 
not  be  fraudulent  so  as  to  be  a  ground  for  attueliment,*  Ijut 
the  assignment,  transfer  or  pledging  of  proi)erty  under  such 
circumstances  as  to  make  the  fact  evident  that  the  transaction 
is  designed  to  defraud  the  plaintiff,  and  prevent  his  collection 
of  his  demand  in  the  ordinary  way,  will  warrant  the  cliarge  of 
fraudulent  disposing  of  property  to  defeat  the  result  of  ordinary 
process,  and  will  constitute  a  good  ground  for  attachment.  ^  In 
making  such  chai-ge,  the  statute  must  be  implicitly  followed, 
(as,  indeed,  in  all  cases,)  though  all  tiie  facts  tending  to  sustain 
the  allegation  need  not  be  detailed.  Some  of  the  courts  are 
particular  in  adhering  to  the  letter  of  the  authorization; 
certainty  should  be  required.  ^ 

If  the  transaction  by  wliicli  the  debtor  disposes  of  liis  prop- 
erty by  pledge,  mortgage,  sale,  etc.,  is  without  consideration, 
that  circumstance  will  justify  the  charge  of  fraudulent  dispo- 
sition, when  the  plaintiff's  rights  are  thus  defeated  or  put  in 
jeopardy.  4  The  charge  may  be  that  such  disposition  was  made 
to  defraud  creditors,  or  that  it  was  to  defraud  the  plaintiff.  ^    A 

1  Milliken  «.  Dart,  26  Hun.  (N.  Y.)  (Tenn.)  720:  Held  that  charging 
24:  The  invalidity  of  a  general  as-  the  defendant  with  the  removal  of 
signment  because  of  provisions  his  live  stock  from  the  State  is  not 
authorizing  the  assignee  to  compro-  equivalent  to  charging  "that  he  has 
mise,  and  sell  on  credit,  does  not  removed,  or  is  removing,  himself  or 
authorize  attachment  under  N.  Y.  his  property  from  the  State."  Blum 
Code,  §  63G,  for  disposing  of  prop-  v.  Davis,  56  Tex.  423:  Held  that  the 
erty  with  intent  to  defraud.  affidavit  that  defendants  were  "about 

2  Weiller  «.  Schreiber,  63  How.  to  convert  their  property,  or  a  part 
(N.  Y.)  Pr.  491 :  A  purchaser  on  thereof,  into  money,  for  the  i)urpose 
credit  who  was  to  sell  again  and  pay  of  placing  it  beyond  the  reach  of 
out  of  the  proceeds  of  sale,  pledged  creditors,"  was  bad  because  of  the 
the  property  to  tliird  persons,  sought  alternation. 

to   conceal    the   properly,    withlield  «  Taylor  «.  Kuhuke,  26   Kan.   1.32: 

the  names   of   the   pledges,  etc.,  for  a  debtor's  giving  a  mortgage,  with- 

which  he  was  held  to   have  become  out  consideration,  to  conceal  interest 

liable  to  an  attachment   suit  under  §  \a  land  and  defraud  creditors,  allbrds 

63GofN.  Y.   Code,   as  having   "as-  ground  for  attachment  by  a  creditor, 

signed,  disposed  of,  or  secreted  prop-  5  Anerbach  v.  Hitchcock,  28  Minn, 

ei'ty-"  73:     A  plaintiff  msiy  charge  that  the 

^Craigmiles    v.      Hays,      7     Lea,  defendant  has  disposed  of  his  prop- 


FRAUDULENT    DEBTORS.  55 

simulated  sale,  to  defraud  creditors,  is  good  ground  for  attach- 
ment.* 

The  plaintitPs  rights  are  in  jeopardy  when  his  debtor  is 
removing  property  out  of  the  State  without  leaving  enough  to 
pay  all  the  creditors, ^  though  enough  may  be  left  to  pay  him. 
He  is  in  danger  of  losing  the  -greater  part  of  his  claim  if  it 
constitutes  a  minority  of  the  debtor's  general  lial)ilities.  He 
cannot  rely  upon  ordinary  process  as  adequate  in  such  case. 
He  is  entitled  to  the  conservative  writ,  especially  in  States 
where  the  tirst  attacher  is  accorded  preference.  The  reason 
which  supports  the  attachment  ought  to  prevail  everywhere.  ^ 
Certainly  the  remedy  should  be  accorded,  unless  in  exceptional 
cases  where  the  removal  is  evidently  but  temporary  and  with- 
out ill  design.*  It  may  be  that  the  permanent  removal  is  not 
with  intent  to  defraud  the  plaintiff  himself;  yet,  if  there  is  not 
enough  left  in  the  State  to  pay  all  the  creditors,  it  may  reason- 
ably be  inferred  that  the  removal  was  designed  to  defraud  some 
creditor,  and  that  alone  would  warrant  the  plaintiif  in  sneing 
out  his  writ  of  attachment,^  where  the  affidavit  required  by  the 
statute  is  to  the  fact  that  the  debtor  has  removed  or  is  about  to 
remove  his  property,  or  a  material  part  of  it,  out  of  the  State, 
not  leaving  enough  to  satisfy  the  plaintiff's  claim  or  those  of 
other  creditors.® 

Under  such   statute,  the  element  of  fraud  is  not  an  essential 

erty  in  part,  and  is  about  to  dispose  the  State,  held  not  to  be  a  ground  of 

of  the  rest,  to  defraud  the   plaintiff.  attachment  under   the  Iowa  code,  § 

1  Haralson  v.  Newton,  63  Ga.  163.  2951,   p.   8,  authorizing    attachment 

2  Mere  removal  is  no  ground  for  when  the  debtor  is  about  to  remove 
attachment:  Steele  v.  Dodd,  14  Neb.  his  property  out  of  the  State.  Also: 
496.  Montgomery  v.  Tilley,  1  B.  Mon.  (Ky.) 

3  Holliday  v.  Cohen,  34  Ark.  707:  155;  Friedlauder  ®.  Pollock,  5  Coldw. 
Removing  property  from  the  State  (Tenn.)  490. 

without  leaving  enough  to  pay  debts,  ^  Sherill  v.  Beach,  87  Ark.  500: 
is  ground  for  attachment,  though  Disposal  of  property  to  delay  or  de- 
enough  may  be  left  to  pay  the  attach-  fraud  one  creditor  justifies  attach- 
ing creditor's  debt;  and,  to  sustain  ment  by  another  creditor, 
this  ground,  he  may  prove  other  ®  Mack  v.  McDaniel,  2  McCrarj',  C. 
debts.  Also:  Nutter  v.  Conuet,  3  B.  Ct.  198:  In  construeing  the  Arkansas 
Mon.  (Ky.)  199.  statute,  making  a  ground  for  attacli- 
*  Warder  «.Thrilkeld,  52  Iowa,  134:  ment  that  the  debtor  "is  about  to  re- 
Temporary  removal  of  property  from  move,  or  has  removed,  his  property, 


56 


STATUTOEY    AUTHORIZATION. 


ingredient  of  the  debtor's  conduct  in  removing  property. 
Even  in  due  course  of  business  as  a  inercliant,  (it  has  been 
held)  he  cannot  ship  goods  out  of  the  State,  i  Doubtless  he 
may  ship,  when  enough  remains  to  pay  his  debts. 2 

So  long  as  a  merchant  or  any  otlicr  person  has  property 
enough  in  the  State  to  meet  all  his  obligations,  he  may  have 
exported  all  his  stock  in  trade  without  rendering  eitlier  tliat  or 
the  remainder  liable  to  attachment.  He  may  even  owe  as 
much  as  the  stock  is  worth,  yet  that  fact  will  not  indicate  an 
intent  to  remove  it,  and  thus  render  it  attachable,  if  he  has 
landed  estate  or  other  j^roperty  free  from  incuml)raTice  and 
sufficient  to  render  him  solvent.  ^  Even  if  he  is  not  solvent,  a 
merciiant  may  sell  goods  in  the  ordinary  course  of  his  business 
without  being  amenable  to  the  charge  of  fraudulently  disposing 
of  them. 4  And  such  a  merchant  may  buy  gcjods  on  credit 
without  disclosing  his  insolvency,  yet  not  necessarily  so  intend- 


or  a  material  part  of  it,  out  of  the 
State,  not  leaving  enough  to  satisfy 
the  plaintiff's  claim"  or  those  of 
other  creditors,  the  court  held  that  a 
merchant,  under  such  circumstances, 
could  not  ship  cotton  out  of  the  State 
in  the  usual  course  ot  his  business, 
without  becoming  liable,  though 
there  was  no  fraud, — the  cotton  being 
"  a  material  part  of  his  assets." 

lid. 

2  In  Alabama,  shipping  cotton  out 
of  the  State  in  the  usual  course  of 
business,  by  a  debtor  who  has  means 
enough  in  the  State  to  pay  his  debts, 
will  not  justify  attachment  on  the 
ground  of  removing  property,  &c. 
Stewart  v.  Cole,  4G  Ala.  046;  Clarke 
V.  Seaton,  18  B.  Mon.  226 ;  Montagues. 
Gaddis,  37  Miss.  453.  But  it  was 
held  in  Mack  &  Co.  v.  McDaniel,  2 
McCrary,  198,  that  sending  cotton  out 
of  the  State,  in  due  course  of  busi- 
ness, is  ground  for  attachment,  if  the 
defendant,  (the  shipper,)  has  not 
propei-ty  enough  left  in  the  State  to 
pay  his  debts. 


2  Wrompelmier  v.  Moses,  59  Tenn. 
467.  That  a  debtor  is  about  to  re- 
move  his  stock  in  trade  out  of  the 
State  is  not  inferrable  from  the  fact 
that  he  owes  as  much  as  it  is  worth, 
when  he  has  real  property  within  the 
State  of  more  than  twice  the  amount 
of  his  indebtedness,  rendering  him 
perfectly  solvent.  Also:  Montague 
v.  Gaddis,  37  Mi-s.453;  White  ».  Wil- 
son, 10  111.  21 ;  White  1;.  Williams,  Id. 
25 ;  Kidgeway  v.  Smith,  17  Id.  33. 

*  Hernsheim .  v.  Levy,  32  La.  Ann. 
340:  Selling  goods  in  the  usual 
course  of  business  is  not  a  fraudulent 
disposing  of  property  such  as  will 
justify  attachment  under  La.  Rev. 
Code;  Art.  240,  §  §  4,  5,  although  the 
seller  may  be  financially  embarrass- 
ed. Same  principle:  Smith  «.  Eas- 
ton,  54  Md.  138;  German  Bank  v. 
Dash,  60  How.  (N.  Y.)  Pr.  124: 
Fraudulent  disposal  of  property  is 
not  inferrable  from  the  sale  of  goods 
by  the  defendants  when  authorized 
by  the  plaiutitTs,  (the  owners)  to  sell, 
and  to  apply  the  proceeds  to  the  pay- 


FRAUDULENT    DEBTORS. 


57 


ing  to  defraud  liis  creditor  as  to  warrant  the  latter  in  sueing  out 
an  attachment.  1 

Whether  tlie  transfer  of  property  is  in  fraud  of  creditors  is 
always  a  question  dependent  upon  the  aiilnius  of  the  debtor 
and  the  circumstances  of  the  transaction. 2  Ordinarily  it  is  not 
necessary  that  the  transferee  should  be  a  participant  in  the  fraud 
in  order  to  enable  the  attaching  creditor  to  inake  the  requisite 
affidavit,-^  though  there  are  exceptions.*  The  admissions  and 
declarations  of  the  debtor  are  to  be  considered  when  fraud  is  a 
matter  of  inference  from  a  given  state  of  facts,  Mdiether  con- 
cerning a  conveyance  of  property  within  the  State  by  deed  of 
sale,  or  the  removal  of  it  beyond  the  bounds  of  the  State,  or 
any  other  disposition  of  the  debtor's  property;  and  the  sale  of 
it,  and'  subsequent  concealment  of  the  money  received,  under 
the  broad  statute  ground,  "fraudulent  disposition  of  property 
and  effects,"  may  be  sufficient  to  support  attachment. ^ 

A  debtor  may  be  about  to  assign  all  his  property  for  the 
benefit  of  his  creditors  without  giving  occasion  for  the  creditor 
to  attach, 8  unless  there  are  circumstances  indicating  fraud;  and, 
in  the  latter  case,  a  threat  to  assign  may  support  the  allegation 


ment  of  bills  of  exchange  which 
plaintiffs  had  discounted  of  the  secur- 
ity of  the  goods,  though  the  defend- 
ants used  the  proceeds,  which  were 
more  than  sutHcient  to  pay  the  bills, 
in  their  business;  and  attachment 
would  not  lie. 

1  Ellison  V.  Bernstein,  60  How.  (N. 
Y.)  Pr.  145:  The  intent  to  defraud 
which  will  justify  attachment  under 
N.  Y.  Code,  §  636,  subd.  2,  must  be 
a  logical  sequence  from  facts  proved. 
Buying  goods  by  an  insolvent  with- 
out disclosing  his  insolvency,  and 
subsequent  refusal  to  secure  the  sell- 
er, were  not  deemed  facts  whence 
such  inference  could  be  drrwn. 

2  Curtis  V.  Hoadley,  29  Kan.  566; 
Clark  V.  Smith,  7  B.  Mon.  273: 
Spencer  v.  Deagle,  34  Mo.  81 ;  Rosen- 
field  V.  Howard.  15  Barb.  546;  McKin- 
uey  V.  iarmero'  IJuuii,  1(J4  111.  ISO. 


«  Enders  v.  Richards,  33  Mo.  598. 

« Johnston  ».  Field,  62  Ind.  377: 
Fraudulent  conveyance,  to  be  sus- 
tained as  a  ground  of  attachment  un- 
der 2d.  Ind.  Rev.  Stat.  p.  232,  §  526, 
must  be  such  that  both  the  purchaser 
and  the  debtor  who  sold  were  guilty 
of  fraud.  In  Leitensdorfer  y.  Webb, 
1  New  Mex.  34,  it  was  held  that  an 
assignment  fraudulent  in  law,  though 
not  in  fact,  was  ground  for  attach- 
ment. 

5  Bullene  v.  Smith,  73  Mo.  151; 
Powell  V.  Matthews,  10  Mo.  49. 

6  Sweet  ®.  Reed,  12  R.  I.  119 
Campbell  v.  Warner,  22  Kan.  604 
Wilson  v.  Brittou,  6  Abb.  Pr.  97 
Dickinson  v.  Beuham,  10  Id.  390 
Eldridge  v.  Phillipson,  58  Miss.  270 
Fitzpatrick  v.  Flannegan,  106  U.  S. 
650;  Harris  v.  Capell,  28  Kan.  117. 


58 


6TATUT(3RY    AUTIIOKI^JATION. 


of  being  about  to  make  fraudulent  disposition  of  property, * 
Confession  of  judgment  in  favor  of  a  third  person  for  the  pur- 
pose of  keeping  property  out  of  the  reach  of  a  creditor,  or 
fraudulent  assignment  for  that  ])urpose,  is  sufficient  indication 
to  conceal,  such  as  to  wan-aiit  attachment. ^  The  debtor's 
threats  to  defeat  his  creditor  by  putting  pi-operty  out  of  the 
reach  of  ordinary  process;  his  declarations  of  intent,  and  more 
especially  his  conduct,  may  be  given  in  evidence  to  pn^ve  his 
animus.  Even  the  statements  of  one  partner  showing  fraudu- 
lent acts  of  another  member  of  the  iirm,  may  give  rise  to  such 
inference  ao-ainst  himself  as  to  afford  around  for  attachment. ^ 

There  are  many  cases  in  which  attachment  is  a  proper  remedy 
because  it  will  not  do  to  trust  to  ordinary  process,  the  circum- 
stances being  such  as  to  bring  the  debtor  within  the  statute  of 
the  State  where  the  suit  is  brouo-ht  ao-ainst  a  non-resident, 
absent,  absconding,  or  property-concealing  debtor,  yet  such  as 
seem  to  require  no  special  treatment,^ 

The  ground,  that  the  cause  of  action  arose  in  another  State 


'  White  v.  Leszynsky,  14  Cal.  165; 
Newman  v.  Kraim,  34  La.  Ann.  910; 
Gasherie  v.  Apple,  14  Abb.  Pr.  G4. 
In  Kansas,  prelerence  given  to  cei-- 
tain  creditors  is  no  ground  for  charg- 
ing fraudulent  disposition  of  projier- 
ty:  Campbell  v.  Warner,  22  Kan.G04. 
Nor  is  it  in  any  Stale  where  making 
preferences  is  legal. 

2  Leitensdorfer  v.  Webb,  1  New 
Mex.  34;  Field  ■!;.  Livermore,  17  Mo. 
218. 

3  Bryant  v.  Simoueau,  51  111.  324: 
Under  the  charge  that  the  debtors 
were  removing  their  projierty  from 
the  State  to  defraud  creditors,  the 
attachment  was  sustained  upon  pioof 
that  one  of  the  debtors  had  admitted 
that  his  partner  had  absconded  and 
taken  most  of  the  firm's  assets  with 
him  out  of  the  State,  leaving  him  to 
pay  the  debts.  The  remaining  debtor 
was  deemed  to  have  been  cognizant 


of  the  apts  of  the  absentee,  and  to 
have  participated  in  the  fraud.  New- 
man v.  Kraim,  34  La.  Ann.  910: 
Threats  to  dispose  of  property,  good 
ground.  Fraudulent  transfer  by  one  oij 
two  insolvent  parties  justifies  attach- 
ment upon  a  joint  demand  against 
both:  Hircsh  v.  Hutchinson,  64  How. 
Pr.  366. 

*  Sloan  V.  Bangs,  10  Rich.  (S.  C.)  15; 
Dunn  V.  Myers,  3  Yerg.  (Tenn.)  414; 
Stratton  v.  Brigham,  2  Sneed,  (Tenn.) 
420;  McCaulley  v.  Shute,  5  Harring- 
ton, (Del.)  26;  Sparks  u.  Zebley,  Id. 
b53;  Haber  v.  Nasitts,  12  Fla.  589; 
Bowers  v.  Beck,  2  Nev.  139 ;  Taylor 
V.  Knox,  1  Dall.  1"8;  Shipraan  v. 
Woodbury,  2  Miles,  (Pa.)  67;  Kingi;. 
Cooper,  Id.  176;    Kennedy  v.  Baillie, 

3  Yeates,  (Pa.)  55;  Naylor  v.  French, 

4  Id.  241;  Wilson  v.  Britton,  6  Abb. 
Pr.  33 ;  Weiller  v.  Schreiber,  11  Abb. 
N.  Cas.  175. 


FRAUDULENT    DEBTORS.  59 

than  that  in  which  tlie  suit  is  broii<j;-lit,  and  that  tlie  dchtoi*  has 
absconded  to  the  hitter  or  secretly  removed  his  goods  into  it,^ 
seems  anomalous,  since  such  a  state  of  things  may  exist  and 
yet  ordinary  process  be  as  available  as  in  any  common  suit  for 
debt. 

An  intent  to  defraud  cannot  be  inferred  from  preference 
given  to  certain  creditors  over  others  in  a  general  assignment, 
where  such  preference  is  not  inhibited. ^  The  partner  of  a 
firm  may,  under  such  absence  of  statutory  restriction,  prefer 
his  own  ci'editors  to  those  of  the  partnership.  It  has  generally 
been  thouglit  that  any  assignment  would  be  void  on  the  ground 
of  fraud  which  should  divert  partnership  property  from  the  pay- 
ment of  partership  debts;  prevent  the  creditors  of  a  firm  from 
making  their  money  out  of  the  assets  of  the  firm.^  But  on 
the  other  hand,  it  seems  settled  that  partners  upon  the  volun- 
tary dissolution  of  their  firm,  may  transfer,  for  a  valuable  consid- 
'eration,  all  their  joint  assets  to  a  single  member  free  from  the 
claims  of  the  partnership  joint  creditors.^  When  one  of  two 
partners  dies,  the  survivor,  if  no  proceeding  to  liquidate  the 
partnership  affairs  be  pending,  may  treat  the  firm  assets  as  his 
own.^  Should  he  then  apply  them  to  the  payment  of  his 
individual  debts,  it  is  held  that  his  act  will  be  valid  if  done  in 
good  faith.  6 

Should  a  creditor  of  the  late  firm,  assuming  that  the  assets 
are   all  bound  to  the  j^^i'tnership  creditors,  sue  out  a  writ  of 

'As   in   Missouri  and   Tennessee:  587;  Lester  u.  Abbott,  88   How.  Pr. 

Merchant  v.  Preston,  1   Lea,   (Tenn.)  488;  Dunham  v.  Waterman,  17  N.  Y. 

280:  Fraudulent  removal  of  property  9;  Johnsons.  McAllister's  Assignee, 

into   the    State    is   ground  of  attach-  30  Mo.  327;    Rosenbergs.   IVIoore,  11 

ment  by    a    non-resident   against  a  Md.  380;  Jenners  -y.  Doe,  9  Ind.  464; 

non-resident.    Act  of  1870,  ch.  122,  §  Johnson   v.   Thweatt,    18    Ala.   744; 

1, amendatory  of  §  3455  of  the  Tenn.  'Forbes  v.  Scannell,  13  Cal.  242;   Nye 

Code.      See    Beasley    v.    Parker,    3  t\  Van  Husan,  6  Mich.  329;  Jackson 

Tenn.  Ch.47.  «.  Cornell,  1   Sandf.  ch.  348;  Nichol- 

2  Lord  V.  Devendorf,  54  Wis.  491;  son  u.  Leavitt,   4   Sandf.    S.    C.   307; 

Spring    V).   Ins.    Co.   8   Wheat,   268;  Kirby  i).  Scoonmaker,  3  Barb.  ch.  46. 

Brasliear«.  West,  7  Pet.  60S:  Eldridge  ''Story     on    Partnership,    ij    358; 

ij.  Phillipsou,  58   3Iiss.  270;   Fitzpat-  Schmidlapp  «.  Currie,  55    3Iiss.  597. 

rick   V    Flaunagan,   106   U.    S.   048;  ^  Locke  «.  Lewis.  124  Mas.s.  1. 

McGinty  v.  Flannagan,  Id.  GGl.  *  lloacli  v.  Branuon,  57  Miss.  490. 

•Wilson  V.   Kobertson,  21    N.  Y. 


60  STATUTOKY    AUTHORIZATION. 

attach inent  and  levy  upon  some  of  those  assets  in  the  hands  of 
a  surviving  partner,  he  must  proceed  on  some  of  the  authorized 
grounds  and  "bring  his  case  strictly  within  the  letter  of  the 
statute,"  and  not  rely  merely  on  showing  that  "the  surviving 
partner  is  acting  in  violation  of  that  quasi  trust  imposed  upon 
him  l)y  law  for  the  benefit  of  firm  creditors." ^ 

The  legal  right  of  such  creditor,  to  prosecute  his  claim  to 
judgment  and  execution  is  indisputable.  His  equitable  right 
to  subject  partnership  assets  to  the  satisfaction  of  his  claim, 
with  preference  over  creditors  of  one  partner,  springs  from  the 
right  of  the  other  partner  to  have  the  Urm  debts  paid  out  of 
the  joint  assets.  While  the  latter  "retains  an  interest  in  the 
firm  assets,  as  a  partner,  a  court  of  equity  will  allow  the  credi- 
tors of  the  firm  to  avail  themselves  of  his  equity,  and  enlbrce 
through  it  the  application  of  those  assets  primarily  to  the  pay- 
ment of  the  debts  due  them,  Avhenever  the  property  comes  under 
its  administration, "2  "  If,  before  the  interposition  of  the  court** 
is  asked,  the  property  has  ceased  to  belong  to  the  partnership;  if 
by  a  Ijona  Jida  transfer  it  has  become  the  several  property 
either  of  one  partner  or  of  a  third  person,  the  equities  of  the 
partners  are  extinguished,  and  consequently  the  derivative 
equities  of  the  creditors  are  at  an  end."^ 

Sec.  6.    Anomalous   Grounds. 

There  are  some  grounds  upon  which  attachment  is  authorized, 
in  a  few  of  the  States,  which  are  not  classifiable  with  any  of 
the  grounds  heretofore  considered.  First,  may  be  mentioned, 
the  fraudulent  contracting  of  the  debt  sued  upon;  that  is,  if  the 
debtor  fraudulently  contracted  it,  the  creditor  may  attach. * 
This  authorization  seems  exceptional  to  the  general  rule  that 
attachment  may  be  resorted  to  wdien  ordinary  process  is  not 
certainly  adequate.  A  debtor  who  has  fraudulently  created  his 
debt    may   yet   be    susceptible    of    personal    service,    and    his 

*  Roach  V.  Brannon,  57  Miss.  490.  Minn.,  Neb.,  Ohio,  Oregon,  Ga.,  Wis., 
2  Case  V.  Beauregard,  99  U.  S.  119;       111.,  Mo.,  Pa.,  R.  I.,  W.  Va.,  Territor- 

re-affirmed,  101  U.  S.  088.  ies  of   Wyoming   and   Washington. 

*  Id.;  Fitzpatrick  ?;.  Flanuagan,  106  And  in   Iowa  in  a  suit  for  debt  due 
U.  S.  648.  lor  properly    which    the   defendant 

*  As  in  Col.,  Kan.,  Miss.,  Mich.,  Md.,  obtained  under  false  pretenses. 


THE    DEBT.  61 

property  mny  be  in  no  danger  of  being  removed,  assigned, 
secreted  or  otherwise  disposed  of  to  ehide  final  execution. 
That  his  slionld  be  attaciuible,  while  other  dishonest  men's 
property  is  not,  appears  to  be  supported  by  no  reason,  and  is 
not  within  the  philosophy  of  conservative  remedies.  As  a 
statutory  ground,  standing  apart'  from  those  above  considered, 
it  must  be  accepted  upon  anthority. 

It  is  often  difficnlt  to  ajiply  the  law  to  the  facts  in  cases  of 
alleged  fraud  in  the  contracting  of  an  obligation  to  pay.^ 

Another  exceptional  ground  is  that  the  debtor  has  failed  to 
pay  on  delivery  as  per  contract.  Tliis  seems  not  only  without 
the  reason  supporting  the  usual  grounds  but  to  be  entirely  out- 
side of  the  general  attachment  theory:  The  ordinary  debtor 
in  danger  of  losing  his  claim  if  prosecuted  onlyby  the  ordinary 
process  should  be  allowed  to  create  a  specific  lien  so  as  to  conserve 
the  defendant's  property  in  sufficient  amount  to  secure  his 
claim.  But  the  vendor  has  his  lien:  why  allow  him  to  create 
another?  Why  not  let  him  levy  npon  the  goods  and  vindicate  the 
vendor's  lien?  This  authorization  for  attachment  seems  to  be 
nothing  more;  it  is  scarcely  more  within  the  general  subject 
than  the  procedure  for  the  enforcement  of  the  mechanic's  lien, 
and  the  like.  Anomalous  Grounds  will  be  further  treated  in 
connection  with  ExGejptional  AttacJunents,  in  the  last  section 
of  this  chapter,  after  The  Debt  or  the  usual  cause  of  action 
shall  have  been  considered. 


Sec.  7.    The  Debt :  What  Debts  are  recoverable  by  Attach- 
ment. 

The  legal  creation  of  a  hypothetical  lien  upon  the  debtor's 
attached  property  to  secure  an  ordinary  debt  due,  and  the 
perfection  of  that  lien  by  judgment,  and  the  enforcement  of  it 
by  execution,  are  purposes  of  the  attachment  suit  which  are 

1  Goss    «.   Boulder   Co.   Com'rs.,  4  Fraudulent  contracting.    False  repre- 

Col.  468:    Misapplication   of   funds  sentations    after  contracting   do  not 

lawfully  received  is  not  the  fraudu-  make  the  debt  fraudulently  coutract- 

lent  contracting  of  a  debt  in   such  ed,  under  Miss.  Code,    1880,   §   2415. 

sense   as  -will  authorize  attachment.  Young  v.  Cooper,  1:^;  Neb.  610.  False 

Marqueze  «.  Southeimer,  59  Miss.  430 :  representations  by  which  the  accept- 


62  STATUTORY    AUTHORIZATION. 

universal.  Debt  licjuidatod  or  certain,  arising  npon  conti-act, 
not  protected  by  any  conventional  lien  or  any  arising  by  opera- 
tion of  law,  and  payable  in  the  State  where  the  suit  to  collect 
it  is  brought,  may  be  scoured  by  the  creation  and  vindication  of 
the  attachment  lien,  (ujxni  the  estublisliment  of  the  prescribed 
grounds  showing  that  oi-dinary  process  would  prove  inadequate,) 
in  every  State  of  the  Union. 

If  the  debt  is  not  due,  but  is  liquidated  or  certain,  and 
has  arisen  upon  contract,  the  attachment  remedy  is  not  gener- 
ally applicable  though  it  may  be  employed  under  such  circum- 
stances in  some  of  the  States.  Tliat  the  debt  must  be  payable 
within  the  State  is  not  expressed  in  all  the  statutes.  Contract 
is  qualiiied  in  some  by  adding  "for  the  payment  of  money." 
Where  the  suit  lies  for  "breach  of  contract  express  or  implied," 
the  contract  to  marry  is  excepted  in  several  statutes. 

Some  of  the  States  have  fixed  a  limit  to  the  amount  of  the 
debt,  so  that  in  a  suit  for  a  sum  below  that  limit  an  attachment 
will  not  lie.  In  others,  there  is  virtual  limitation  by  the  con- 
finement of  the  remedy  to  courts  in  which  there  is  no  jurisdic- 
tion in  suits  on  demands  below  some  specified  amount. 

The  application  of  this  conservative  writ  has  been  extended 
in  many  of  the  States  to  all  money  demands.  It  is  not  confined 
to  debts  due  upon  contract,  but  is  employed  in  the  prosecution 
of  claims  for  torts.  Some  statutes  expressly  authorize  it  in  all 
actions  for  the  recovery  of  damages  arising  ex  delicto  as  well  as 
ex  contractu^  where  the  proper  grounds  for  attachment  exist.  It 
is  even  authorized  in  suits  merely  sounding  in  damages.  The 
pleader  must  look  to  the  statute  under  which  he  proceeds  to 
ascertain  whether  the  remedy  is    authorized;  for    there   is  not 

ance  and  payment  of  a  draft  was  ob-  ®.  Sontbeimer,  59  Miss.  430:  Tbe 
tained,  beld  to  be  a  fraudulent  con-  rtHiw??^^  of  tbe  defendant  must  be  con- 
tracting of  a  debt,  jnstilying  attacb-  sidered,  wben  tbe  fraudulent  con- 
ment.  Granger's  Ins.  Co.  ».  Turner,  tracting  of  tbe  debt  is  made  a  ground 
61  Ga.  5G1:  Attacbment  is  allowed  in  ■  of  attacbment.  Miss.  Code,  1880,  § 
Georgia  in  a  suit  for  "money  bad  and  2415.  Wittner  in.  Von  Minden,  27 
received,"  to  recover  money  paid  for  Hun.  269 :  In  an  action  to  recover 
stock  in  a  foreign  corporation  on  tbe  damages  for  fraudulently  obtaining 
ground  tbat  it  was  fraudulently  ob-  goods,  attacbment  cannot  be  issued, 
tained  from  tbe  plaintiff.     Marqueze  See  Rosentbal  b.  Webre,  58  Wis.  621. 


THE    DEBT.  63 

miiformitj  of  antliorization  in  cases  of  tort  to  sncli  extent  as 
in  case  of  debt  upon  contract  express  or  implied.  The  cases 
are  nnmerous  in  whicli  courts  have  held  that  attachment  could 
not  be  maintained  for  torts,  offences,  quasi  offences  and  the  like, 
for  want  of  statute  authorization.!  Obviously,  the  statute  gov- 
erns in  all  cases,  whether  upon  contract  or  tort;  but  the  pleader 
needs  to  be  more  cautious  when  the  latter  is  the  cause  of  action, 
since  the  authorization  of  attachment  therein  is  less  o-eneral. 

Wlien  a  statute  expressly  authorizes  attachment  for  injuries, 
except  for  libel,  slander,  assault  and  battery,  false  imprison- 
ment, seduction  and  breach  of  promise  to  marry,  (classing  the 
last  among  the  wi-ongs  or  offences  previously  named,)  it  may  be 
inferred  that  attachment  will  lie  for  any  tort  not  thus  excepted. 
In  such  cases,  the  petition  must  aver  a  certain  sum  due,  though 
it  is  for  the  jury  to  assess  the  damages.  There  is  really  no 
debt  certain,  but  the  certainty  of  the  allegation  suffices  for  all 
the  purposes  of  granting  the  writ,  fixing  the  amount  of  the 
bond,  and  determining  how  much  property  may  be  lawfully 
attached. 

The  injury  or  wrongful  conversion  of  personal  property  is 
such  a  cause  of  action  as  to  warrant  resort  to  attachment,  in 
some  of  the  States;  and  the  remedy  is  employed  in  one  State 
when  the  suit  is  founded  on  the  penal  laws. 

1  Piscataqua   B:iuk   v.   Turnley,  1  Bray  ton,     (Vt.)    234;      Emerson     v. 

Miles,  312;  Jacoby  v.  Gogell,  5  Serg.  Paine,  9  Vt.  271;  Bradley  ».  Cooper, 

&R.  450;  Porter  v.   Hildebrand,  14  6  Vt.   121;  Hill  i'.  Whitney,    16  Vt. 

Pa.  St.  129;  Thompson  v.  Carper,  11  461;  Stanley  t-.  Ogden,  2  Root,  (Ct.) 

Humphreys,  542;   i'ellows  v.  Ero^Yn,  259;  Maxwell  v-  McBrayer,  Phillips, 

38  Miss.  541;  McDonald  v.   Forsyth,  (N.  C.)527;  Minza    f.   "Zollicoffer,  1 

13  Miss.  549;  Hyuson  v.  Taylor,  3  Iredell,  (N.  C.)  278;  Sargeant  v. 
Ark.  552;  Baune  v.  Thoraassin,  6  Helmbold,  Harper,  (S.  C.)  219;  War- 
Martin,  (La.)  N.  S.  503;  Hanna  D.  wick  «.  Chase,  23  Md.  154;  Gordon 
Loring,  11  Martin,  (La.)  276;  Pre-  «.  Gaffey,  11  Abb.  Pr.  1;  Shaffer  v. 
witt  ».  Carmichael,  2  La.  Ann.  943;  Mason,  18  Id.  455;  Saddlesveue  v. 
Greiner  v.  Prendergast,  3  Id.  376;  Arms,  32  How.  Pr.  280;  Raver  v. 
Swager  ».  Pierce,  3  Id.  435;  Holmes  Webster,  3  Iowa,  502;  Handy  v. 
V.  Barclay,  4  Id.  63;  Marshall  v.  Brong,  4  Neb.  60 ;  Reed  v.  Beach,  2 
White,  S  Porter,  551:  Austin  «.  Pinney,  (Wis.)  26;  Elliott ».  Jackson, 
Grout,  2  Vt.  489 ;  Tarbell  v.  Bradley,  3  Wis.  649 ;  Grisw^old  v.  Sharpe,  2 
27  Vt.  535;  Ferris  «.  Ferris,  25  Vt.  Cal.  17.  See  Pa.  Railroad  c.  Peoples, 
100;  Park  v.   Trustees   of  Williams,  31  Ohio  St.  542. 

14  Vt.    213;  Hutchinson    v.  Lamb, 


r4  STATUTORY    AUTIIOEIZATION. 

The  several  classes  of  suits  in  wliich  attachment  lies  ap- 
proach much  nearer  to  uniformity  in  their  relation  to  tlie  auxili- 
ary remedy  of  attacliment,  than  would  appear  upon  the  first, 
cursory  view.  Tliough  the  phraseology  varies  in  different 
statutes,  the  meaning  is  nearly  the  same.  Under  the  construc- 
tion given  to  the  terms  deht^  debtor,  creditor,  claim,  money- 
demand,  and  others  frequently  recurring  in  the  several  attach- 
ment laws,  the  practice  of  the  different  States  has  been  brought 
more  nearly  to  a  general  system  than  would  seem  possible  upon 
a  casual  comparison  of  the  statutes.  Debt  has  not  been  con- 
fined to  its  strict  technical  signification,  but  made  synonymous 
with  any  certain  obligation  for  the  payment  of  money.  Tech- 
nically it  is  the  owing  of  a  snm  of  money  by  express  agree- 
ment; but  it  is  understood,  in  the  attachment  laws,  in  its  popu- 
lar sense  as  the  owing  of  a  sum  whether  the  obligation  arose 
upon  express  agreement  or  not.  It  is  not  generally  understood, 
however,  to  include  obligations  arising  ex  delicto',  and  there- 
fore, when  the  statute  of  a  State  makes  no  mention  of  suits  for 
tort  when  stating  what  suits  may  be  aided  by  attachment,  but 
confines  them  to  actions  for  debt,  it  must  be  understood  that 
the  legislator  lias  not  meant  that  the  writ  would  lie  in  suits  of 
the  former  character. 

Decisions  in  which  the  above-mentioned  terms,  "  debt," 
"debtor,"  "creditor,"  "money-demand,"  etc.,  have  been  con- 
strued, from  time  to  time,  have  almost  invariably  given  them  a 
popular  and  liberal  rather  than  a  strict  construction,  so  as  to 
render  the  general  practice  more  uniform  than  it  could  other- 
wise have  been,  as  will  appear  upon  the  further  consideration 
of  the  general  subject. 

Sec.  8.    Exceptional  Attachments. 

"When  the  principal  action  is  to  recover  purchase  money, — 
the  price  of  a  thing  sold  and  delivered, — and  tlie  statute  allows 
the  issue  of  a  writ  of  attachment  against  the  specific  property 
which  is  the  object  of  the  price;  and  when  the  suit  is  for  the 
recovery  of  specific  property  ordered  by  the  court  to  be  delivered 
to  the  plaintiff,  but  the  delivery  of  which  has  been  prevented 
by  some  wrongful  disposition  of  it  by  the    defendant  or  some 


EXCEPTIONAL   ATTACHMIOXT.  65 

otlier  person,  and  the  statute  autliorizes  that  such  property  mav 
be  attached,  such  applications  of  the  writ  of  attachment  are 
exceptional.  It  would  seem  that  sequestration  would  be  the 
proper  remedy  in  the  latter  case.  Some  of  the  States,  however, 
enumerate  these  causes  of  action  among  the  rest  in  their  at- 
tachment laws,  and  they  are    treated  by  the  courts  accordingly. 

In  such  suits,  the  petition  must  describe  the  specific  thing: 
nothing  else  can  be  attached.  The  pleading  must  conform  to 
the  peculiar  circumstances  of  such  cases,  which  difi'er  widely 
from  ordinary  attachment  causes,  whether  on  claims  arising  ex 
contractu  or  ex  delicto;  especially  in  this:  such  excejDtional  at- 
tachments are  not  for  the  purpose  of  creating  a  lien  where  none 
previously  existed.  The  vendor  already  has  the  vendor's  lien. 
The  owner  seeking  delivery  already  has  Xyvs,  jus  in  re. 

Suits  in  vindication  of  any  existing  lien,  such  as  that  of  a 
builder,  a  mechanic,  a  laborer  under  the  "  log  lien  laws,"  may 
be  aided  by  the  attachment  of  that  upon  which  the  lien  rests, 
by  the  laws  of  some  States,  but  such  attachment  is  excep- 
tionah 

Suits  in  vindication  of  existing  liens  are,  to  some  extent,  in 
several  States,  classed  among  attachment  suits.  When  the 
plaintiff  is  not  in  possession  yet  has  a  right  resting  upon  par- 
ticular property,  and  is  entitled  to  proceed  by  the  seizure  of 
that  particular  property,  his  action  is  by  attachment;  but  the 
proceeding  is  so  different  from  the  usual  attachment  suit  that  it 
may  well  be  treated  as  exceptional.  It  is  against  specific  prop- 
erty; it  is  to  vindicate  rather  than  to  create  a  lien;  it  is  gov- 
erned by  different  principles  from  those  applicable  to  other 
attachment  suits,  with  respect  to  the  affidavit,  the  bond,  the 
levy,  and  priority  among  rival  creditors.  It  should  therefore 
be  classified  with  actions  upon  mortgage  and  other  liens  rather 
than  with  ordinary  attachment  suits.  But,  as  the  statutes  and 
the  decisions  apply  the  latter  term  to  suits  on  specific  liens 
authorized  by  the  attachment  laws,  such  proceedings  must  be 
noticed  herein  and  treated  as  exceptional  attachments. 

In  regard  to  some  of  these  liens,  it  must  be  noticed  that  they 
are  authorized  by  the  attachment  statutes;  or,  rather,  the  right  to 
proceed  finds  its  warrant  in  them.  In  Georgia,  property  sold 
5 


66  STATUTORY    AUTHORIZATION. 

and  delivered  but  not  paid  for  when  tlie  debt  is  due,  may  be 
attached  by  the  vendor  while  it  is  in  the  possession  of  the  ven- 
dee. The  attachment  is  limited  to  that  particular  property, 
which  must  be  described  in  the  'affidavit.  Kansas  has  a  similar 
provision;  and  in  Virginia,  attachment  lies  in  a  suit  to  recover 
specific  jiroperty.  In  Kentucky  and  Arkansas,  attachment  ia 
authorized  in  suits  to  recover  personal  property,  the  delivery  of 
which  to  the  plaintiff  has  been  ordered,  if  it  has  been  so  dis- 
posed of  by  the  defendant  that  the  sheriff  cannot  execute  the 
order  for  delivery.  In  Nevada,  attachment  is  allowed  in  all 
actions  upon  contract  for  money  payable  in  the  State,  with  the 
express  exception  of  those  secured  by  lien  or  mortgage,  and 
there  is  like  exception  in  several  other  States;  indeed,  that  is 
the  general  rule.  In  Rhode  Island,  if  the  debtor  has  owned 
property  or  received  income,  which  he  has  neglected  or  refused 
to  apply  to  the  payment  of  his  debt  after  being  requested  to 
make  such  application,  attachment  is  authorized  on  that 
ground. 

Many  other  States  have  provisions  for  attachment  by  pro- 
ceedings differing  from  the  prevalent  remedy  to  create  and  per- 
fect liens  to  secure  ordinary  debts;  most  of  them  with  refer- 
ence to  builder's  and  mechanic's  liens  and  others  of  kindred 
nature. 

In  Maine  there  are  various  statutory  liens,  enforceable  by  at- 
tachment, though  the  object  is  merely  to  vindicate  the  pre-exist- 
ing right;  such  as  the  lien  for  ship-building  materials ;i  for 
wages; 2   for  cut  granite,  etc. ;3    for  manufactured  slate,  etc.* 

Suits  upon  such  liens  differ  essentially  from  an  attachment 
suit  on  an  ordinary  debt  to  create  a  lien;  yet  the  courts  hold 
that  when  such  suits  have  been  brought  "  and  the  liens  cannot 
be  upheld,  the  attachments  may  still  be  considered  valid  as 
those  of  general    attaching   creditors  not   seeking   to  enforce 

1  Fuller  v.  Nickerson,  69  Me.  228;  ^  Collins  Granite  Co.  v.  Devereux, 
Murphy  i;.  Adams,  71  Me.  113:    "log      73  Me.  422. 

lien."  *  Union  Slate  Co.  v.  Tilton,  73  Me 

2  Flood  V.  Randall,   72    Me.    4-30 ;      207 ;  Stat.  187G,  §  90. 
Haywood  v.  Cunningham,  Id.  128. 


EXCEPTIONAL    ATTACHMENT.  G7 

liens."!  Jt  would  seem  that  in  States  wliere  grounds  for  at- 
tachment must  be  laid  in  an  affidavit,  a  suit  to  enforce  a  pre-ex- 
isting lien  could  not,  upon  failure  to  sustain  the  alleged  lien,  be 
converted  into  an  ordinary  attachment  suit  without  the  previous 
establishment  of  some. statutory  ground,  such  as  non-residence, 
absconding,  or  the  fraudulent  di-sposition  of  property. 

Other  States  than  that  above  mentioned  have  provisions  for 
the  enforcement  of  like  liens,  and  the  proceeding  is  by  attach- 
ment though  quite  different  from  an  attachment  to  create  a 
lien.     It  seems  unnecessary  to  cite  further  instances. 

Specific  liens  already  existing  cannot,  as  a  general  rule,  be 
enforced  by  attachment  or  garnishment;  there  is  little  statutory 
authorization  for  such  proceeding. 2 

The  Michigan  lien  for  labor  on  logs,  etc.  is  made  dependent 
upon  the  suit  to  enforce  it  when  it  has  been  previously  recorded 
or  entered  as  a  claim  in  the  office  of  the  clerk  of  the  county  in 
which  the  labor  was  rendered.  The  plaintiff  must  make  an 
affidavit  that  his  labor  and  service  have  been  such  as  to  author-, 
ize  a  lien;  and  if  he  omits  any  material  allegation  which  the 
statute  I'equires,  "  the  officer  would  have  no  authority  to  execute 
the  writ'  by  seizing  the  property." 

There  are  many  provisions  in  the  statute  which  are  peculiar, 
showing  that  the  attachment  is  anomalous, ^  though  the  one 
just  mentioned  relative  to  the  omission  of  statutory  require- 
ments is  not  so.  Several  other  States  have  "  log  liens,"  (as 
they  are  popularly  styled,)  in  all  of  which  the  proceedings  to 
enforce  them  are  exceptional  to  the  prevalent  practice  on 
attachments. 

1  Union  Slate  Co.  v.  Tilton,  73  Me.  Civil  Code  of  Arkansas,  authorizes 
207;  First  National  Bank «.  Redman,  attachment  in  equity  suits:  Am. 
57  Me.  405 ;  Perkins  v.  Pike,  42  Me.  Land  Co.  v.  Grady,  33  Ark.  550. 
141;  Redington  v.  Frye,  43  Me.  Mechanic's  lien:  Brugman  v.  Mc- 
578.  Guire,  32  Ark.  733.     Lien  on   ci'op: 

2  Hodo  tj.  Benecke.  11  Mo.  App.  6:  Tignor  v.  Bradley,  Id.  781;  Guatt's 
A    boarding-house     keeper's      lieu  Dig.  §  §  4101-2. 

against  guests'  wages  cannot  be  thus  ^  Woodruff  y.  Ives,  34  Wich.  320. 

enforced.     Attachment  is  no  remedy  *  Howell's  Annotated  Statutes,  g  § 

for  the  recovery  of  specific  property :  8412-8427. 
Gates  V.  Bennett,  33  Ark.  475.    The 


68  THE    INSTITUTION    OF    THE    SUIT. 


CHAPTER    III. 

THE  INSTITUTION  OF  THE  SUIT. 

§  i.  The  Petition.  §    6.  The  Affidavit — Amendments. 

2.  The  Affidavit — Jurisdictional.  7.  "  — As  Evidence. 

3.  "  — Matter  and  Form.  8.  Tlie  Bond — In  General. 

4.  "  — Indebtedness.  9.  "         — Amount. 

5.  "  —Grounds.  10.         "         —The  Obligors. 

Sec.  1.    The  Petition. 

Whether  the  principal  action  is  brottght  by  petition  or  by 
some  other  form  of  pleading,  according  to  the  practice  in  any 
State,  it  is  governed  by  the  same  general  principles:  therefore 
the  plaintiff's  initial  pleading  may  be  treated  here  as  a  petition 
without  any  tendency  to  mislead  those  who  are  more  familiar 
■  with  the  practice  in  which  the  suit  is  upon  declaration. 

The  petition  or  declaration  does  not  materially  differ  from  its 
ordinary  form  because  an  ancillary  proceeding  accompanies  it. 
If  a  suit  is  brought  to  recover  debt  without  attachment,  it 
would  be  precisely  like  such  suit  with  attachment,  except  the 
addition  of  the  allegations  necessary  to  this  statutory  remedy, 
and  the  prayer  for  the  attachment  and  for  privilege  on  the 
property  in  the  final  judgment.  In  some  States  the  last  named 
part  of  the  prayer  is  not  required  for  the  perfection  of  the 
lien.^  It  would  be  a  work  of  supererogation,  .then,  to  descant 
at  large  on  the  petition;  it  would  be  an  encroachment  upon  the 
general  subject  of  pleading. 

The  petition,  however,  has  so  important  a  relation  to  the 
ancillary  attachment  proceeding  that  the  latter  cannot  exist 
without  it  or  its  equivalent.  ^  In  other  words,  there  must  be  a 
principal  suit,  brought  by  j^etition  or  declaration,  in  order  to 
institute  the  ancillary.  So  far  n^  the  petition  thus  bears  upon 
the  attachment  proceeding,  it  should  be  fully  treated. 

1  De  Caussey  v.  Baily,  57  Tex.  665 :  ^  Baltimore     Bank     v.      Teal,     4 

Prayer  for   attachment  held  not  es-      Hughes  C.  C.  572. 
Bential. 


THE    TETITION.  69 

The  petition  must  set  forth  the  nature  and  amount  of  the 
demand  ;i  the  grounds,  (or  reference  to  an  accompanying  athda- 
vit  containing  them,)  u])on  which  attachment  is  prayed  for;  it 
must  allege  the  fact  that  affidavit  has  been  made,  whether  the 
grounds  are  stated  at  length  in  the  petition  or  not.  Where  the 
statute  fixes  the  amount  of  the  bond,  (as,  for  instance,  that  it 
shall  be  in  a  sum  double  the  amount  of  what  is  claimed  in  the 
])etition,)  the  plaintiff  should  refer  to  it  as  duly  executed  and 
filed  or  now  presented  with  the  petition.  Where  the  practice  is 
to  file  a  declaration  without  setting  forth  specifically  the 
amount  of  the  claim,  and  where  the  amount  of  the  bond  is 
fixed  by  the  court,  the  practice  is  exceptional.  The  conrt  is 
sometimes  obliged  to  look  to  the  amount  set  forth  in  the  atlida- 
vit  or  in  the  writ  in  order  to  fix  the  amount  of  the  bond.  But 
the  practice  is  pretty  general  to  present  to  the  court  a  bond, 
with  the  petition  and  alHdavit,  regulated  in  its  amount  by  the 
money  demand  of  the  petition.  The  petition  or  declaration 
may  be  eked  out  by  the  attachment  jDapers  in  some  of  the 
States.  2  Where  there  is  sej-ious  blunder,  such  as  the  mis- 
joinder of  defendants,  the  declaration  should  be  amended, 
where  the  practice  allows  such  error  to  be  cured  by  amendment. ^ 

Suit  is  frequently  brought  for  debt  without  any  design  to 
have  it  accompanied  by  an  attachment  proceeding.  The  plain- 
tift",  at  the  time  of  its  institution,  may  have  no  reason  to  fear 
tliat  ordinary  process  will  not  prove  adequate.  Afterwards — it 
may  be  weeks  or  months  afterwards — he  may  learn  that  the  de- 
fendant is  taking  measures  to  defeat  the  execution  of  any  judg- 

1  Bartlettt).  Ware,  74Me.  202;  Bel-  12  Kans.  282;  Dietrich  «.  Lang,  11 

fast  Savings  Bank   v.  K.  L.  &  L.  Co.  Kans.   63G;  King  v.   Harrington,    14 

73  Me.  404.    In  Maryland,  the  "sliort  Mich.  532;  Van  Wyck   v.  Hardy,  4 

note"  was  held  fatally  defective  for  Abb.  App.  Dec.  49l) ;  Stienle  v.  Bell, 

not    setting     out    partners'    names:  12  Abb.    Pr.    N.  S.    171;    Bixby  v. 

Hirsh  Brothers  v.   Thurber,   54  Jld.  Smith,  49    How.    Pr.    50.     (S.    C.  5 

210.     Simpson  ®.  Bnrch,  4  Hun.  315;  Thompson  &  C.  279.)     Dronillard  v. 

Seaver   v.    Fitzgerald,    23    Cal.   85;  Whistler,  29  lud.  552. 

Sueterlee  v.  Sir,  25  Wis.  357;  Mack-  2  ^g  jq  Qeorg  a:  Kolb  v.  Cheney, 

ubin  ®.  Smith,  5  Miu.  3(57;  Harriug-  63  Ga.   688;  King  v.    Thompson,  59 

ton  V.  Loomis,  10  Id.   366;  Gemmell  Ga.  380. 

V.  Rice,  13  Min.  400;  Byrne   v.    Bob-  »  Starr ».  Mayer,  GO  Ga.  546. 
erts,  31  Iowa,  319;  Ogden  v.  Walters, 


70  THE    INSTITUTION    OF    THE    SUIT. 

ineiit  that  may  be  obtained,  by  removing,  secreting  or  otlierwise 
frandnlently  disposing  of  goods,  leaving  nothing  by  which  the 
judgment  could  be  satisfied.  Tlio  plaintiff  may  then  file  a 
supplemental  petition,  with  affidavit  and  bond,  setting  forth 
statutory  grounds  for  attachment  and  pi-aying  for  the  writ. 

The  logical  order  of  pleading  reqnires  that  the  statement  of 
the  grounds  and  the  prayer  for  the  writ  sliould  precede  the 
filing  of  the  affidavit,  or  accompany  it.  In  practice,  owing  to 
the  hurry  frequently  attending  the  bringing  of  attachment  pro- 
ceedings, (as  wlien  goods  ai'e  just  about  being  S])irited  away,) 
the  order  is  sometimes  reversed — the.  affidavit  being  filed  and 
the  writ  issued  before  the  filing  of  the  petition.  'No  harm  can 
ensue  from  such  practice,  if  the  petition  is  filed  on  the  same 
day,  or  within  reasonable  time.  Courts  will  not  hypercritic- 
ally  note  the  hours,  if  both  the  petition  and  the  affidavit  have 
been  filed  before  the  issue  of  the  writ,  though  the  petition  come 
later  than  the  oath.  But  when  a  writ  was  served  at  3  P.  M., 
and  the  petition  filed  at  6  P.  M.,  of  the  same  day,  the  attach- 
ment was  held  invalid. ^ 

They  might  properly  refuse  to  issue  the  writ  without  the 
prayer  for  it;  but  if,  in  their  discretion,  and  in  the  confidence 
Avhich  should  exist  between  the  court  and  attorneys  practicing 
before  it,  the  logical  order  should  be  reversed  for  a  brief  period, 
the  debtor  can  have  no  cause  to  complain.  Courts  should  not 
grant  the  writ  without  a  duly  filed  petition  for  it,  when  aware 
of  a  pending  contest  between  creditors,  if,  by  granting  it,  one 
would  thus  acquire  an  undue  advantage  over  another. 

Where  the  question  of  priority  among  attaching  creditors 
depends  upon  the  order  in  which  writs  are  delivered  to  the 
sheriff,  the  filing  of  the  petition,  (or  of  the  initial  pleading 
required  for  the  institution  of  the  suit,  according  to  the  prac- 
tice of  the  State  where  tlie  suit  is  brought,)  should  always  pre- 
cede the  issuance  of  the  writ:  otherwise,  a  junior  attacher  may 
show  that  a  writ,  claiming  to  be  prior  to  his,  was  issued  without 
legal  authority.  2      Even  the  first    levy  will  fail  to  give  priority 

1  Seibevt  v.  Switzer,  35    Ohio  St.  »  Ward  v.  Howard,  12  Ohio  St.  158. 

6G1. 


THE    PETITION-  71 

if  mnde  before  tlie  tHiiig  of  tlie  petition  asking  for  it,  (or  be- 
fore the  coinmenceinent  of  the  suit  in  rightful  form,)  though 
tlie  atKdavit,  bond  and  writ  may  all  be  older  than  the  initial 
pleading  of  the  creditor  who  has  made  a  later  levy  in  strict 
compliance  with  law.^  Indeed,  the  auxiliary  proceeding  de- 
pends for  its  legal  existence  upon  the  institution  of  the  princi- 
pal suit;  and,  without  the  latter,  there  is  no  authority  for 
issuing  a  writ  of  attachment. ^  If  issued,  the  writ  is  void;  and 
if  a  non-resident's  property  be  seized  under  it,  there  can  be  no 
legal  notice  of  publication,  and  the  court  would  not  acquire 
jurisdiction.  5 

When  there  is  a  principal  suit,  and  an  attacliment  in  aid  of 
it  is  separately  sued  out,  the  logical  order  is  that  the  latter 
should  follow  the  former.  It  should  not  precede  the  principal 
action,  but  both  may  be  brought  on  the  same  day  or  even  sim- 
ultaneously; and  both  ought  to  be  entitled  in  the  same  case. 
They  would,  however,  be  so  far  separate  and  distinct  proceedings 
that  a  defense  to  the  ancillary  wjuld  not  necessarily  apply  to 
the  principal  action.*  Whether  instituted  separately  or  not, 
the  principal  suit  and  the  attachment  proceeding  are,  in  many 
respects,  two  different  actions ;5  and  the  latter  should  not  pre- 
cede the  former  in  the  order  of  institution,  for  the  reason  that 
it  is  always  ancillary  in  character.  ^ 

Wherever  the  plaintiff  is  re(]uired  to  declare  upon  an  attach- 
ment consummated,  the  practice  is  exceptional  to  that  above 
considered. 

Though  attachment  suits  are  always  brought  as  personal 
actions,  against  a  personal  defendant,  and  continue  to  be  per- 
sonal suits  when  the  defendant  is  summoned  or  appears  in  court, 

1  Seibert  «.  Switzer,  35   Ohio    St.  *  Scliulenberg  v.  Farwell,    84  111. 
6G1.  400. 

2  Kerr  v.  Mount,  28  N.  Y.  659;  ^  Erwin  «.  Heath,  50  Miss.  795. 
Watier  t'.  Goble,  53  Barb.  517;  Kel-  «  Furman  «.  Walter,  13  How.  Pr. 
ley  B.  Strayer,  15  Hun.  97;  Pope  i;.  348;  Marsh  v.  Williams,  G3  N.  C. 
Hiberuia  Ins.  Co.  24  Ohio  St.  481;  371;  Moore  «.  Sheppard,  1  Met. 
Endelv.  Liebrock,  33  Id.  254;  Sei-  (Ky.)  97;  Duncan  v.  Wickliffe,  4  Id. 
bert  B.  Switzer,  35  Id.  6G1.  118;   Frankenheimer  ■«.    Slocum,  24 

^Endel  «.  Liebrock,   33    Ohio  St.      Ala.  373;  Fechheimer   v.    Hays,  11 
254.  Ind.478. 


72  THE    INSTITUTION    OF    THE    SUIT. 

SO  that  the  amount  of  the  judi^inent  inayl)e  collected  froin  liiin, 
even  though  it  exceeds  the  value  of  the  property  attached,  yet 
when  he  is  not  brought  into  court  but  notified  by  publication, 
the  suit  is  really  against  the  property  attached  and  against  that 
only.  This  has  been  repeatedly  held  as  elsewhere  shown;  has 
been  definitely  settled  by  the  Supreme  Court  of  the  United 
States,  and  is  consonant  with  reason  aud  established  legal 
principles. 

How  is  the  petition  to  be  understood  when  property,  and  not 
its  owner,  is  that  against  which  the  proceeding  is  directed  and 
the  judgment  decreed?  How  are  allegations  against  a  person 
to  be  applied  to  his  property?  How  is  the  prayer  for  judgment 
against  a  person  to  be  read  as  against  the  res  under  seizure? 
How  does  a  petition  in  a  personal  action  become  equivalent 
to  a  libel  asrainst  a  thincj? 

The  law  supplies  the  wanting  allegations;  the  law,  as  con- 
strued by  the  courts,  supplies  what  is  necessary  to  make  the 
pleadings  applicable  to  attached  property  when  the  debtor- 
owner  cannot  be  personally  reached.  The  attachment  statutes 
authorize  the  ancillary  proceeding  against  the  property  though 
the  principal  suit  is  personal,  and  provide  that  it  may  be  prose- 
cuted to  judgment  when  the  defendant  in  the  principal  suit 
cannot  be  brought  into  court. 

There  is  no  allegation  in  the  petition  that  the  property  is  an 
indebted  thing,  but  the  law  allows  the  creation  of  a  lien  upon 
it,  and  authorizes  procedure  as  though  there  were  a  pre-existing 
lien.  And  it  requires  notification  by  publication,  so  as  to  enable 
the  nncited  owner  to  appear  and  claim,  as  in  any  action  in  rem. 
Such  publication  is  not  substituted  service,  since  it  does  not 
perform  the  whole  office  of  service  so  as  to  render  the  debtor 
liable  to  a  personal  judgment.  It  is  an  invitation  to  come — 
not  an  order  for  appearance.  It  is  resorted  to  only  when  the 
personal  action  is  seen  to  be  unavailable,  and  the  property  ac- 
tion is  rendered  necessary.  Doubtless  the  legislator  might  have 
required  that,  in  such  case,  the  creditor  should  revise  his  plead- 
ing, and  file  his  suit  against  the  property  itself;  but,  under  the 
construction  of  the  statutes  as  they  stand,  the  consequent  delay 
and  expense  are  avoided,  and  the  petition  is  treated  as  though  it 


THE    PETITION.  73 

liad  been  originally  drawn  as  a  libel  against  tlie  property  at- 
tached. It  is  convenient  to  have  such  practice,  since  the  plead- 
ings would  yet  hold  good  as  those  of  a  personal  suit,  should  the 
debtor,  at  a  later  stage  of  the  cause,  render  it  really  such  by 
appearing  and  defending.  Doubtless  the  practice  is  anomalous; 
but  it  is  so  well  settled  that  the  suit  is  a  personal  one  only 
when  the  defendant  appears  or  is  served,  (though  the  form  of 
the  pleading  on  the  part  of  the  plaintitY  is  the  same  whether 
there  is  a  personal  defendant  or  not,)  that  the  novelty  of  such 
practice  cannot  be  urged  against  its  validity. 

The  petition,  (or  other  initial  pleading,)  must  disclose  such 
cause  of  action  as  may  be  aided  by  attachment.  Suits  to  re- 
cover debt  are  those  in  which  the  remedy  is  most  genei-ally 
authorized.  Attachment  M'as  originally  the  creditor's  remedy, 
to  the  exclusion  of  other  classes  of  litigants;  but  now  it  is  ex- 
tended, in  many  States,  to  causes  between  those  not  bearing 
towards  each  other  the  relation  of  debtor  and  creditor,  in  the 
technical  sense  of  those  terms. 

Debts  due  upon  contract  give  rise  to  attachments  everywhere. 
"Whether  the  contract  be  express  or  implied,  the  conservative 
process  is  generally  applicable.  The  allegation  that  the  debt  is 
due,  coupled  with  some  statutory  ground  for  attaching,  must  be 
made  in  the  petition.  If  the  debt  is  not  due,  the  plaintiff  is 
not  yet  a  creditor,  and  therefore  he  ordinarily  cannot  sue;  but, 
the  object  of  attachment  being  to  conserve  the  property  from 
which  the  money  is  to  be  made  in  case  of  judgment,  the  plain- 
tiff is,  in  many  States,  authorized  to  bring  his  action  on 
a  claim  that  is  certain  in  amount,  while  it  is  yet  maturing, 
before  it  has  become  due,  if  his  statutory  ground  for  attach- 
ment is  that  the  defendant  is  fraudulently  disposing  of  himself 
or  his  property  so  as  to  defeat  any  judgment  that  may  be  ob- 
tained. Debt  due  or  not  due,  under  such  circumstances,  con- 
stitutes such  a  cause  of  action  as  to  warrant  the  institution  of 
the  suit,  though  there  can  be  no  final  judgment  till  the  debt  is 
due. 

Attachment  M'ould  be  wanting  in  utility,  in  many  cases,  if 
the  debtor's  property  could  not  be  conserved  so  as  to  await  execu- 
tion, unless  in   suits  for  debts  due.     It  is  greatly  enhanced  in 


74  THE    INSTITUTION    OF    THE    SUIT. 

value  as  a  remedy  by  the  authorization  for  its  application  in 
suits  on  certain  obligations  not  yet  matured. 

Curiously  eiiough,  the  ancillary  proceeding  is  essential  to  the 
existence  of  the  principal  action  when  the  suit  is  upon  a  debt 
not  due.  Under  such  circumstances,  the  latter  cannot  stand 
alone.''  No  one  can  ordinarily  sue  upon  a  debt  not  due.  The 
legislator  specially  authorizes  that  such  a  suit  may  be  brought, 
accompanied  by  attachment,  when  tlie  necessary  grounds  are 
laid.  The  dissolution  of  the  attachment,  in  such  a  suit,  would 
w^ork  the  dismissal  of  the  main  action;  a  result  not  attending 
such  dissolution  in  suits  upon  matured  obligations. 2 

Can  the  attachment  proceeding  be  properly  styled  "  ancillary  " 
in  a  suit  dependent  upon  it  for  existence?  It  is  in  aid  of  execu- 
tion; and,  as  there  can  be  no  judgment  upon  the  demand  till 
the  debt  has  become  due  and  owing,  the  term  seems  proper,  at 
least  at  the  termination  of  the  suit.  Upon  the  trial  of  the 
main  cause,  after  the  maturity  of  the  obligation,  the  defeat  of 
the  plaintilf  would  dissolve  the  attachment,  as  in  any  other  case, 
though  the  dissolution  of  the  attachment  alone  would  not  then 
defeat  the  main  action;  hence  the  term  "ancillary"  is  seen  to 
be  appropriate. 

Whether  due  or  not,  the  debt  must  be  certain;  that  is,  the 
petition  must  be  for  judgment  in  some  stated  amount,  under 
most  of  the  State  statutes.  As  a  suit  for  breach  of  contract  to 
marry  is  not  upon  a  money  contract;  that  is,  not  upon  any 
agreement  by  the  defaulting  party  to  pay  any  given  sum  as 
penalty,  the  suit  is  attended  with  uncertainty  as  to  the  amount 
of  damages  that  ought  to  be  recovered,  though  the  petitioner 
allesfe  a  definite  sum  in  his  demand.  Hence,  some  of  the 
statutes,  when  authorizing  attachment  in  suits  for  breach  of 
contract,  expressly  except  the  contract  to  marry. 

When  damages  are  demanded  for  debts  arising  ex  contractu^ 
and  the  plaintiff  alleges  in  his  petition  that  a  definite  amount 
is  due,  though  there  is  nothing  expressed  in  the  contract  itself 
as  to  penalty,  the  action  is  such  as  to  be  susceptible  of  aid  by 
attachment  under  provisions  of  statute    authorizing  it  in  suits 

1  Gowan  v.  Hanson,  55  Wis.  341.  « Id. 


THE    TETITrON.  75 

for  damrges,  for  anj  money  demand,  and  like  causes  of  action 
appearing  without  qualification.  Some  of  the  States  authorize 
attachment  in  suits  merely  sounding  in  damages. 

A  petition  may  be  amended,  under  leave  of  court,  by  sup- 
plement or  otherwise;  but  if  the  object  is  to  render  a  void 
attachment  valid,  the  amendment  would  not  have  that  effect. 
If,  for  instance,  the  petition  has  been  filed  under  oath,  and  no 
other  affidavit  is  made,  the  amendment  might  cure  the  errors  of 
the  petition  but  not  those  of  the  affidavit — -considering  the 
sworn  petition  as  sucli.^  An  amendment  relates  to  the  com- 
mencement of  the  suit,  if  the  proceeding  is  founded  on  a 
proper  cause  of  action. 2  It  should  never  be  permitted  when  it 
would  work  injury  to  any  party  in  the  case — intervenor, 
defendant  or  surety.  If  there  has  been  a  departure  from  the 
usual  practice, — such  as  failure  to  attach  the  affidavit  to  the 
petition  when  that  is  the  legal  course, — the  cause  should  not  be 
dismissed  nor  the  attachment  dissolved,  since  it  is  within  the 
power  of  the  complaining  party  to  require  a  copy  of  the  omitted 
paper  to  be  supplied.  ^ 

The  defendant  may,  of  course,  take  advantage  of  radical  mis- 
takes in  the  petition,  such  as  a  declar;ition  on  an  "  account 
stated"  instead  of  a  declaration  "for  goods  sold  and  delivered," 
in  States  where  such  particularity  is  important.^  An  intervenor 
could  not  avail  himself  of  such  error.  ^ 

The  general  rule  is:  if  the  declaration  is  demurrable,  the 
attachment  must  be  quashed.  ^  Of  course  the  converse  is  not 
true;  for  an  attachment  may  be  dissolvable  yet  the  petition 
hold  good;  it  may  be  good  pleading   in  the  personal   action, 

I  In  Marx  ■!).  Abraham,  53  Tex.  264,  iimomled.'"     See  Brack  i'.  McMahan, 

the  phxintiflf  had  sworn  to  the  ])eti-  61  Id.  1. 

lion   without  any  separate  atiidavit;  2  Tarkinton  v.  Broussard,  51   Tex. 

the  petition   was  insufficient  as   an  550;  Pearce  «.  Bell,  21  Tex.  090.     A 

affidavit;  the  petition  was  amended:  new  count,  as  to  the  debt,  would  so 

held  that  the  amendment  cured  the  relate:  blendes  v.  Freiters^lG  Nev. 

defect  of  the  petition,  as  such,  but  not  388. 

its  delects  as   an  affidavit.     And  the  ^  Olmstead  v.  Rivers,  9  Neb.  2o4. 

court  said:     "By  an  unbroken  line  ♦  M envies  «.  Freiters,  IG  Nov.  388. 

of  decisions  from  the  days  of  the  re-  ^  Id. 

public  until  the  present  time,  an  aftl-  ^  National  Bank  v.  Teal,  4  Hughes, 

davit     for     attachment    cannot     be  572. 


76  THE    INSTITUTION    OF    THE    SUIT. 

eorrectlj  setting  forth  the  indebtedness  and  properly  praying 
for  judgment,  yet  not  alleging  statutory  grounds  for  attacliinent; 
and  there  may  be  no  affidavit  or  no  sufficient  one. 

A  plea  to  the  jurisdiction  may  be  sustainable  with  reference 
to  the  ancillary  suit  yet  not  to  the  ])rincipal;  for  though  the 
petition  may  be  good  and  the  defendant  may  liave  been  served 
with  summons,  may  liave  appeared,  may  liave  even  joined  issue 
in  the  main  case,  he  may  yet  set  up  that  the  court  has  no  power 
and  authority  to  hear  and  determine  the  ancillary  proceeding 
because  the  attachment  was  made  without  affidavit  or  witliout 
bond,  or  witliout  such  affidavit  and  bond  as  the  statute  requires 
and  that  there  was  therefore  no  authority  to  issue  the  writ 
under  which  the  attachment  was  made. 

Sec.  2.    The  AflBdavit  Jurisdictional. 

The  affidavit  required  by  statute  is  essential  to  the  validity 
of  the  writ  and  to  the  jurisdiction  of  the  court  in  attachment  pro- 
ceedings. It  is  required  and  rendered  thus  essential,  because 
the  creditor  lias  no  specific  lien  upon  any  particular  property 
of  his  alleged  debtor;  and  he  is  not  entitled  to  the  extraordi- 
nary relief  which  the  statute  gives  to  enforce  an  ordinary 
debt,  unless  he  makes  the  required  oath  showing  the  indebted- 
ness to  exist,  (and  that  the  debt  is  due,  when  the  statute 
requires  that  showing;)  and  that  such  statutory  grounds  exist 
as  are  requisite  to  entitle  him  to  the  process  of  the  court.  The 
procedure  is  anomalous;  the  remedy  is  utterly  repulsive  to  the 
instinct  of  justice,  if  ordinary  process  is  adequate  and  no 
reason  can  be  shown  why  there  should  be  seizure  before  judg- 
ment. The  remedy  is  one  that  might  greatly  injure  the 
defendant  if  lie  is  not  really  indebted  as  alleged,  or  is  not  really 
putting  in  jeopardy  the  right  of  the  creditor  to  secure  his 
claim  in  the  ordinary  way;  and  therefore  the  law  demands  that 
affidavit  of  the  facts  shall  be  made;  and  authorizes  the  court  to 
take  jurisdiction  to  issue  the  process  on\y  when  the  plaintiff 
has  filed  his  oath,  and  also  a  bond  when  that  too  is  statutory  as 
it  usually  is.  The  statute  requirement  of  an  affidavit,  or  its 
equivalent  in  some  form  of  preliminary  evidence  to  support  the 
writ,  is  uni\ersal.     The  jurisdiction  of  the  court  depends  upon 


THE   AFFIDAVIT    JURISDICTIONAL. 


77 


the  affidavit,  (or  snch  equivalent  evidence  as  may  be  required,! 
60  for  as  concerns  the  issuance  of  the  attachment.  Unless 
the  jurisdiction  exists;  nnless  the  j^laintiff  lays  the  required 
foundation,  the  writ,  if  issued,  and  the  proceedings  following  it, 
would  be  null  and  void.  If  there  is  no  affidavit,  or  if  there  is 
one  fatally  defective  and  not  amendable,  and  if  there  is  no 
waiver  by  the  defeudant,  all  following  proceedings  under  a 
writ  issued  without  such  requisite  would  be  jurisdictionless  and 
void.i 

There  was  a  case  in  Michigan  which  grew  out  of  an  attach- 
ment suit  in  a  federal  court,  in  which  the  defendants  had  been 
personally  cited,  so  that  there  unqestionably  was  jurisdiction 
over  them  in  the  personal  action;  but,  the  affidavit  being  fatally 
defective   because  the  creditor  did  not  swear  that  the  debt  was 


» Wright  V.  Smith,  66  Ala.  545; 
Johnson  v.  Hannah,  Id.  127;  Clark  v. 
Garther,  6  Ala.  139;  Jones  v.  Pope, 
Id.  154;  Coopers.  Trederick,  9  Ala. 
738;  McGown  v.  Sprague,  23  Id.  524; 
Kirksey«.  Fike,  37  Id.  383;  Hoze- 
man  v.  Rose,  40  Id.  212;  Courrier  v. 
Cleghorn,  3  Iowa,  523 ;  Eads  v.  Pit- 
kin, 3  Iowa,  77;  Clark  v.  Roberts,  1 
111.  222;  Manly  v.  Headley,  10  Kan. 
88;  Black  v.  Brisbin,  3  Minn.  360; 
Beach  .v.  Botsford,  1  Doug.  (Mich.) 
199;  Greenvault  «.  Farmer's  Bank,  2 
Douglass,  (Mich.)  498;  Wiglit  v. 
Warner,  1  Doug.  384;  Wilson  v. 
Arnold,  5  Mich.  98 ;  Hale  v.  Chand- 
ler, 3  Mich.  531 ;  Buckley  «.  Lowry,  2 
Mich.  418;  LeRoy  v.  E.  Saginaw 
City  Ry.  18  Mich.  233;  Watkins  v. 
Wallace,  19  Mich.  57,  74;  Cadwell  «. 
Colgate,  7  Barb.  (N.  Y.)  258 ;  Vankirk 
V.  }Vilds,  11  Barb.  N.  Y.  520;  Bates®. 
Relyea,  23  Wend.  336;  Earl  «.  Camp, 
16  Wend.  562;  Morgan  v.  House,  36 
How.  (N.  Y.)  Pr.  326;  Smith  v.  Luce, 
14  AVend.  237 ;  Bx  parte  Haynes,  18 
Wend,  611;  Bx  parte  Robinson,  21 
Wend.  672 ;  In  re  Faulkner,  4  Hill, 
N.  Y.  598;  In  re  Bliss,  7   Id.   187; 


Parker  v.  Walrod,  16  Wend.  514; 
Smith  V.  Davis,  29  Hun.  306;  Foster 
®.  Jones,  1  McCord,  (S.  C.)  116;  Dev- 
ries  V.  Summit,  86  N.  C.  126;  Biggs 
V.  Blue,  5  McLean,  148;  Bruce  v. 
Cook,  6  Gill  &  Johnson,  (Md.)  345; 
Shockley  v.  Bulloch,  18  Ga.  283; 
Graham  v.  DeLannay,  34  Id.  442; 
Erwin  v.  Commercial  Bank,  3  La. 
Ann.  186 ;  Kerr  v.  Smith,  5  B.  Mon  . 
352;  Calk  v.  Chiles,  9  Dana,  (Ky.; 
265;  Worstell  ®.  Ward,  1  Bush,  198 
Burnam  v.  Romans,  2  Id.  191 ;  Kenne 
dy«.  Dillon,  1  A.  K.  Marshal],  354. 
McReynolds  v.  Neal,  8  Humphrej's, 
(Tenn.)12;  Maples  v.  Tunis,  11  Id. 
108;  McCulloch  V.  Foster,  4  Yerger, 
162;  Conrad  v.  McGee,  9  Id.  428; 
Williams  ■».  Glasgow,  1  Nev.  533; 
Hai'gadine  v.  Van  Horn,  72  Mo.  370; 
Sanders  v.  Canett,  38  Ala.  51;  Green- 
way  V.  Mead,  26  N.  J.  L.  303 ;  Merrill 
V.  Montgomery,  25  Mich.  73;  Bards- 
ley®.  Hines,  33  Iowa,  157;  Schelly. 
Lelaud,  45  Mo.  289 ;  Estbrook  v.  Est- 
brook,  64  Barb.  421 ;  Waffle  v.  Goble, 
53  Barb.  51? ;  Spiers  v.  Halstead,  71 
N.  C.  209 ;  Claypole  v.  Houston,  12 
Kansas,    324;    Riley    v.    Nichols,    1 


78  THE    INSTITUTION    OF    THE    SUIT. 

due,  as  reqiiii'ed  by  tlie  statute  of  Michigan — tlic  federal  court 
sitting  in  that  State — there  was  no  authority  for  issuing  the 
writ  to  attach  property  before  judgment.  The  marshal  having 
levied  upon  property  in  the  lawful  possession  of  third  persons 
holding  under  chattel  mortgage,  they  sued  him  in  the  State 
court  for  trespass,  and  there  he  oifored  to  prove  that  the  propci'ty 
belonged  to  the  attachment  debtor,  and  sought  to  shield  himself 
under  the  writ.  Jluled  aiiainst  as  to  that  evidence  and  failiiicr  in 
that  defense,  he  took  the  case  to  the  Supreme  Court  of  Michigan 
where  it  was  held  that  the  statutory  requirement  of  the  affidavit 
was  jurisdictional  and  that  the  writ  was  without  validity  because 
the  debt  had  not  been  sworn  to  be  due,  and  therefore  the 
marshal  was  a  trespasser  for  levying  under  it.  The  court 
added:  "The  first  step  in  this  jurisdiction  is  to  show  not  a 
writ  merely  but  a  valid  writ;  and  there  can  be  no  valid  writ  of 
attachment  without  a  sufficient  affidavit.  The  marshal  under- 
stood this  and  endeavored  to  satisfy  the  rule  by  producing  a 
certified  copy  of  the  affidavit.  Unfortunately  the  evidence 
defeated  the  justification  instead  of  supporting  it."i 

The  statute  of  Michigan  on  attachment  prescribes:  "Before 
any  writ  of  attachment  shall  be  executed,  the  plaintiff,  or  some 
person  in  his  behalf,  shall  make  and  annex  thereto  an  affidavit 
stating  that  the  defendant  therein  is  indebted  to  the  plaintiff 
and  specifying  the  amount  of  such  indebtedness  as  nearly  as 
may  be  over  and  above  all  legal  set  offs,  and  that  the  same  is 
due  upon  contract,  express  or  implied  or  upon  judgment,  etc."^ 

The  clause  requiring  oath  to  the  maturity  of  the  debt  had 
been  construed  by  the  Supreme  Court  of  Michigan  before  the 

Heisk.  16;  Bruley  v.  Seaman,  30  Cal.  ■p.  Heard,  22  Miun.  189. 

610;  Clark -y.  Roberts,  1  111.  222;  Red-  i  Matthews  v.  Densmore,  43  Mich, 

wood  V.  Consequa,  2  Browne,  (Pa.)  78 ;  461 ;  Reversed,  109  U.  8.  210. 

Pancake  «.  Harris,  10  S.  &  R.  109;  2  Howell's  Annotated  Statutes,  § 
Deupree'jj.  Eisenach,  9  Ga.  598;  Cow-    '  7987;  the  same  as  in  the  Compiled 

ard  V.  Dillinger,  56  Md.  59 ;  Bowen  v.  Laws,  §  6898 ;  though  by  C.  L.  §  6433, 

Slocum,   17    Wis.   181 ;  Whitney    v.  the  affidavit  being  tiled  with  the  clerk 

Brunette,  15  Wis.  61 ;  Marx  v.  Abram-  need  not  be  attached  to  the  writ ;  and 

son,  53  Tex.  264;  Messner  v.  Hutch-  it  was  not  attached  to  the  writ  under 

ins,  17  Tex.  597;  McNamara,  v.  Ellis,  discussion  in  the  case  of  Matthews®. 

14  Ind.  516 ;  Mantz  v.  Hendly,  2  Hen-  Densmore,  above  cited, 
ing  &  Mumford,  (Va.)  308;  6'Farrell 


THE    AFFIDAVIT MATTER    AND    FORM.  79 

case  now  under  consideration  came  before  them ;  and  it  had  been 
held  that  stating  the  defendant  to  be  indebted  is  not  equivalent 
to  an  allegation  that  the  debt  is  due;i  that  the  debt  must  be 
shown  to  be  due;^  that  there  must  be  a  present  cause  of  action 
existing  at  the  time  of  filing  the  affidavit ;3  that  the  affidavit 
must  aver  the  demand  to  be  due  upon  contract,  etc.,*  and  that 
the  affidavit  is  necessary  to  confer  jurisdiction. ^ 

Sec.  3.    The  Affidavit — Matter  and  Form  in  General, 

The  state  of  things  at  the  time  the  affidavit  is  made;  the 
indebtedness  and  the  grounds  for  attachment  then  existing, 
must  be  sworn  to:  and  the  oath  should  be  made  at  the  time  of 
the  application  for  the  writ.^  The  affidavit  is  made  with  refer- 
erence  to  property  then  belonging  to  the  defendant,  and  then 
liable  to  execution  as  his.  It  is  with  reference  to  no  particular 
property,  but  to  any  such  property.  Herein  is  a  marked  differ- 
ence between  attpchment  proceedings,  and  proceedings  insti- 
tuted against  property  already  in  court  under  seizure  for  the 
adjudication  of  itb  datus  as  forfeited.  In  the  latter  case,  the 
action  is  against  a  specific  thing;  and,  though  its  owner  may 
possess  other  property,  it  is  not  affected  by  the  suit  nor  the 
judgment  to  follow,  and  it  cannot  be  executed  under  such  judg- 
ment. 

The  attachment  affidavit,  (except  under  a  statute  authorizing 
the  attachment  of  property,  sold  and  delivered,  to  recover  the 
purchase  money,  and  other  exceptional  authorizations,  in  which 
the  goods  or  other  articles  to.be  seized  must  be  described.)  need 
not  contain  any  description  whatever  of  the  property  to  be 
attached. 

It  ought  to  show  that  resort  to  the  extraordinary  process  of 
attachment  is  necessary,  where  the  remedy  is  confined  to  cases  in 

'Cross  «.  McMaken,  17  Mich.  511.      Mich.  531;    Watkins  v.  Wallace,  19 

2  WpIIs  v.  Parker,  26  Mich.  102.  Id.  57,  74;  Le  Roy  -o.  East  Saginaw 

3  Galloway    «.    Holmes,    1    Doug.       City  Railway,  18  Id.  233. 

(Mich.)  350.  6  Wilson   v.   Arnold,  5  Mich.    98; 

*  Wilson  ■«.  Arnold,  5  Mich.  98.  Fessenden  v.  Hill,  G  Id.  242;  Dorr  «. 

5  Id.;  GreenvaultB.  F.  &  M.  Bank,  Clark, 7  Id.  310;  Hubbardston  Lum- 

2  Doug.  (Mich.)  498;  Beach  v.  Bots-  ber  Co.  v.  Covert,  35  Id.  254. 
fold,  .1   Id.  199;  Hale  ».  Chandler,  3 


80  THE    INSTITUTION    OF    THE    SUIT. 

wliicli  tlie  ordinary  would  not  be  likely  to  prove  available,  i  It 
need  not  show  that  action  lias  been  commenced,  or  that  sum- 
mons has  been  issued,  ^  unless  such  showing  is  expressly  required 
by  statute.     It  need  not  aver  jurisdiction. ^ 

To  establish  the  necessity  for  the  extraordinary  relief  he 
claims,  the  creditor  must  follow  the  statute  when  making  his 
oath.  If  that  requires  that  the  debt  must  be  due,  he  must 
swear  that  it  is  due;  if  that  requires  that  it  must  be  due  on 
contract,  he  must  swear  that  it  is  due  upon  contract;  if  that 
specifies  several  grounds  upon  any  of  which  the  remedy  may 
be  awarded,  the  affiant  must  swear  to  the  existence  of  one  or 
more  of  the  grounds  in  language  substantially  embodying  the 
meaning  of  the  statute.  The  omis  is  on  him.  The  presump- 
tion is  against  the  necessity  of  resorting  to  the  harsh  process. 
His  right  to  move  comes  solely  from  the  statute,  and  he  must 
follow  it. 

The  sworn  statement  of  the  facts  which  the  law  requires  is 
the  basis  for  the  issuance  of  the  writ.  The  creditor,  who  would 
have  the  debtor's  property  attached,  must  lay  the  foundation  for 
the  extraordinary  proceeding  which  he  prays  for,  by  an  affida- 
vit in  substantial  compliance  with  the  statute  upon  which  he 
relies  as  his  warrant  for  the  suit,  and  following  the  statute  form, 
if  any  is  prescribed. * 

There  is  nothing  sacramental  in  the  form  of  the  affidavit. 
Like  all  papers  of  that  character,  it  should  be  clear,  succinct, 
certain,  respectful,  and  as  brief  as  is  consistent  with  a  full  dis- 
closure of  the  matter  to  be  expressed.  It  should  show,  beyond 
all  ambiguity,  in  what  suit,  or  intended  suit,  it  is  made;  should 
make  perfectly  clear  all  necessary  facts  and  the  names  of  the 
parties.     The    title  of  the    suit  ought  to  be  prefixed,  and  the 

'  In  California,  it  should  show  that  Richards    v.    Donanghey,  13    Phila. 

payment    has  not   been  secured  by  514;  Shockley  «.  Bulloch,  18  C4a.  288, 

any  lien  or  mortgage:  Wilke  V.  Cohn,  Barrill   v.    Humphreys,   2G    Id.  514; 

54  Cal.  212 ;  Merced  Bank  ».  Morton,  McCollem    «.    White,    23    Ind.    43; 

58  Cal.  360.  Moody  v.  Levy,  58  Tex.  532;     Key- 

2Pickhardt    v.    Antony,  27    Hun.  burn  v.   Brackett,  2  Kan.  227;   Mat- 

269.  thews  v.  Dare,  20  Md.  248 ;  Emmitt  v. 

3  Branch  «.  Frank,  81  N.  C.  180.  Yeigh,    12  Ohio  St.  335:    Hilton  v. 

*  Lankin  v.  Douglass,  27  Hun-.  517;  Ross,  9  Neb.  406. 


THE    AFFIDAVIT— MATTER    AND    FORM.  81 

style  of  the  court  set  forth.  Thougli  not  in  the  form  of  a 
petition  or  an  address  to  the  judo^e,  it  should  show  in  what 
court  it  is  meant  to  he  filed,  and  what  judge  is  to  act  upon  it. 
The  tiling  would  cure  omissions  of  the  matters  last  mentioned, 
but  the  plaintiff  should,  as  a  matter  of  precaution,  (so  as  to 
give  the  clerk  no  excuse  for  wrotig  tiling,)  make  such  directions 
incidentally  appear  by  his  afiidavit. 

A  defective  affidavit  cannot  be  cured  by  the  averments  of 
the  petition.  The  affidavit  is  not  a  part  of  the  pleadings,  nor 
are  the  pleadings  any  substitute  for  the  affidavit.  A  swoi'n 
petition  may  embrace  both  the  character  of  a  petition  and  of  an 
afiidavit.  Tliey  should  be  kept  separate,  however,  for  various 
apparent  reasons;  especially  when  the  practice  is  against  stat- 
ing the  grounds  for  an  attachment  in  the  petition,  i 

The  plaintiff,  as  a  pre-requisite  to  the  obtaining  of  a  writ  of 
attachment,  must  insert  in  his  petition,  if  that  is  to  take  the 
place  of  an  affidavit  or  perform  its  office,  that  the  debt  sued 
for  is  just,  due,  or  whatever  else  may  be  specified  by  the 
statute  which  governs  him. 2  If  the  petition  is  not  sufficient  as 
an  affidavit,  its  subsequent  amendment  will  not  avail. 

The  affidavit  must  be  made  by  the  plaintiff,  or  his  agent, 
attorney  or  factor. '  If  the  statute  requires  that  it  be  made  by 
the  plaintiff,  and  gives  no  express  authorization  for  its  being- 
made  by  an  agent,  the  authority  is  yet  implied,  at  least  under 
certain  circumstances.  It  must  be  presumed  that  the  framers 
of  the  law  meant  that  a  corporation  may  make  the  oath  by  its 
president  or  other  proper  officer,  since  it  is  impossible  for  an 
artificial  person  to  make   an    affidavit    otherwise   than  through 

'  Harrison  v.  King,  9  Ohio  St.  388.  346;  and  that  defendant  was  about  to 

2  Endel  v.  Leibrock,  33   Ohio  St.  remove    property:    Lester    v.   Cum- 

254;  Garner  «.  White,   23    Id.   192;  miugs,  8  Humph.  385. 
Dunlevy  y.  Schwartz,  17  Id.  640.     It  '^  The  agent  or  attorney  must  swear 

was  held  in  Louisiana,  (where  peti-  that  he  acts  for  the  plaintiff:  Miller 

tions  are  not  sworn  to,)  that  if  the  v.  C.  M.  &  St.  Paul  Ky.  Co.  58  Wis. 

absence  of  the  plaintiff  is  disclosed  310.     If  he  swear  positively  to  the 

Herein,  it  need  not  be  shown  by  the  amount  due,  he  need   not  state  his 

affidavit.    Farleyy.  Farior,  6La.  Ann.  means  of  knowledge:    Anderson   v. 

725.     Indebtedness  stated  only  in  the  Wehe,  58  Wis.   615.     See   Wiley   v. 

bill :  Foster  v.  Hall,  4  Humph.  (Tenn.)  Aullman,  53  Wis.  500. 

6 


82  THE    INSTITUTION    OF    THE    SUIT. 

some  representative.  Unless  tlie  lan£:;iia(4e  of  tlie  statnte  is 
sucli  &,s  to  plainly  excliule  agents  from  acting  for  their  principals, 
it  ought  to  be  understood  that  they  may  thus  act  in  cases  where 
the  principals  cannot  act  personally  by  reason  of  absence,  sick- 
ness or  other  canse.  A  foreign  corporation  slionld  be  permitted 
to  make  the  affidavit  by  its  resident  agent.  An  attorney  at  law, 
when  authorized  by  a  client  who,  for  any  reason,  cannot  physic- 
ally appear  and  make  the  affidavit  himself,  should  be  allowed  to 
represent  him. 

Where  the  statute  does  not  confine  the  making  of  the  oath 
to  the  plaintiff  himself,  there  is  no  reason  for  invoking  the  pre- 
sumption or  implication  above  suggested,  but  any  agent,  factor 
or  attorney  duly  authorized,  may  thus  represent  the  plaintiff 
when  he  cannot  personally  appear. 

The  affidavit  should  be  made  by  the  plaintiff  himself  when 
he  is  present;  it  must,  in  all  cases,  be  made  by  one  interested 
in,  and  responsible  for  the  attachment,  or  by  an  agent  em- 
powered to  represent  him;  and  the  legislator  is  doubtless  com- 
petent to  confine  the  making  of  it  to  the  plaintiff  himself.  ^  It 
is  not  usual  for  statutes  to  restrict  so  narrowly  except  in  cases 
where  the  plaintiff  is  personally  present.  Under  such  restric- 
tion, the  spirit  of  the  statute  would  allow  a  corporation  to  make 
the  oath  by  its  president  or  other  authorized  officer,  since  it 
could  not  possibly  make  it  in  any  other  way;^  and,  in  case  the 
plaintiff  is  sueing  for  the  use  of  a  third  person,  it  would  seem 
that  such  person  might  make  the  affidavit  as  the  real  party- 
plaintiff.  ^ 

Affidavits  are  very  frecjuently  made  by  agents,  who  SM'ear  to 
their  authority  as  well  as  to  the  requisite  facts.  An  agent 
need  not  file  his  power  of  attorney  wdth  his  affidavit,  though 
he  ought  to  be  ready   to  exhibit  it  if  required    by  the  officer 

1  Stewart  «.  Clark,  11  La.  Ann.  319;  Nicolls  v.  Lawrence,  30  Mich.  305. 

Baker?).  Hunt,  1   Martin,  (La.)  194;  2  pgygr  v.  Bank    of  Alabama,   10 

Cohen «.  Manco,   28  Ga.  27;  Pool  «.  Ala.   G16;    Trenton   Banking  Co.   v. 

Webster,  3  Met.  (Ky.)  278;  Mantz  v.  Haverstick,  6  Halsted,  171. 

Heudley,  2  Heniug  &  Munford,  308;  ^  Grand  Gulf  R.  R.  &  Banking  Co. 

Myers   v.  Lewis,   1    McMullen,  54;  •».  Conger,  17   IMiss.   505;  Murray  v. 

Jackson  «.    Shipman,    28    Ala.  488;  Cone,  8  Porter,  250. 


THE    AFFIDAVIT- — MATTEK    AND    FORM.  83 

issuincp  the  writ  Under  ordinary  circumstances,  such  exhibit 
is  not  required,  and  the  officer  is  not  authorized  to  demand  it. 
lie  is  not  bound  to  issue  the  writ  upon  the  application  of  a 
mere  stranger  without  proof  that  the  applicant  is  authorized  to 
represent  the  plaintiff.  The  authority  should  be  set  forth  in 
the  affidavit.  1  It  must  not  only  appear  therein  that  the  affiant 
is  the  agent  of  the  plaintiff,  but  that  he  is  agent  for  the  pur- 
pose of  making  the  oath;  or  has  general  powers  including 
authorization  to  do  so.  And  the  affiant  must  swear  to  such 
additional  circumstances  as  the  statute,  under  which  he  appears, 
may  require;  such  as  the  absence  of  his  principal,  or  the  ina- 
bility of  his  principal  to  appear  for  any  cause. 

If  the  afffant  is  an  attorney  at  law,  ah-eady  of  record  for  the 
plaintiff,  having  signed  and  filed  the  petition  in  the  case,  it  is 
not  absolutely  essential  that  he  should  swear  to  his  authority  to 
represent  his  client  when  making  the  affidavit  in  tlie  latter's 
behalf.  If  the  statute  allows  affidavits  to  be  made  by  attorneys, 
those  at  law  are  included  as  well  as  attorneys  in  fact,  and  the 
court  must  presume  their  authority  when  they  appear.^  But 
as  a  lawyer  may  be  employed  to  conduct  a  cause,  yet  not  to 
resort  to  the  extraordinary  remedy  of  attachment,  it  is  better 
that  he  should  disclose  his  authority  to  make  the  affidavit  in 
the  instrument  itself,  and  declare  under  oath  why  his  client 
does  not  make  it  himself.  The  attorney's  authority,  as  a  gen- 
eral rule,  is  confined  to  his  duties  as  attorney. ^ 

The  affiant  should  sign  the  affidavit,  but  his  omission  to  do      , 
so  would  not  necessarily  be  fatal  to  it*     The  essential  matter 

'  Wiley  t).  Aultman,  53  Wis.  560;  •   See  generally,  with  respect  to  attor- 

Willis  «.  Lyman,  22  Tex.   268;  Wet-  neys' authority  to   appear  for  their 

more  ».  Baffin,  5  La.  Ann.  496;  Lith-  clients    after    becoming  of   record: 

gow  «.  Byrne,  17  Id.  8;  Pool  v.  Web-  8teubeu  Co.  Bank  v.  Alberger,  75  N. 

ster,  3Met.   (Ky.)   278;  Anderson  ©.  Y.  179;  Ruppert  ®.  Haug,  87  Id.  141 ; 

Sutton,  2  Duv.  (Ky.)  480.  Jacobs  «.  Hogan,   85  Id.  243;  Trow 

2  Gilkesent\  Knight,  71   Mo.  403;  Printing  Co.  x>.  Hart,  Id.  500;  Burton 

Austin  v.  Latham,  19  La.  88;  Clark  «.  v.  Wynne,  55  Ga.  615. 
]\Iorse,   16  Id.    575;    Wethervvax  v.  *  West     Tennessee      Agricultural 

Paine,  3  Mich.  555.  Association  v.  Madison,   9  Lea.  407; 

^  Alexander  u.  Denaveaux,  53  Cal.  Bates  ?j.  Robinson,  8  Iowa,  318 ;  Hits- 

664;  and  same  parties,  59  Cal.  476.  man  ».  Garrard,  16  N.  J.   Lea.  124; 


84  THE    INSTITUTION    OF    THE    SUIT. 

is  that  lie  should  make  the  showing  nncler  oath — not  tliat  he 
attest  it  by  his  signature.  That  he  made  it  must  appear  by 
tlie  jurat,  even  though  the  signature  should  have  been  inadvert- 
ently omitted. 

The  signature  of  the  officer  to  tlie  jurat  is  not  absolutely 
indispensable,  since  the  fact  that  the  oath  was  administered  may 
V  be  established  by  other  means,  and  that  is  the  essential  fact.  ^ 
Such  omission  may  be  remedied  by  amendment,^ 

If  absence  of  signature  to  the  jurat  may  be  remedied  with- 
out fatality,  it  will  be  readily  seen  that  the  omission  of  the 
offiicial  designation  to  the  name,  or  of  a  part  of  such  desig- 
nation, is  not  more  serious.  ^ 

The  affidavit  may  be  sworn  before  any  officer  authorized  to 
administer  oaths.^  Deputy  clerks  not  only  administer  oaths, 
but  it  is  now  common  for  them  to  issue  the  writs  as  well.^ 

"When  the  plaintiff  files  a  petition  containing  all  that  should 
be  in  an  affidavit,  and  swears  to  it,  he  need  not  file  a  separate 
oath  of  the  facts  on  which  he  asks  that  the  writ  may  issue.'' 
In  such  case,  the  paper  filed  need  not  be  good  as  pleading,  but 
it  must  be  good  as  an  affidavit,  in  order  to  warrant  the  granting 
of  the  attachment:  its  quality  as  pleading  may  bide  its  time  to 
be  tested.  It  may  be  in  the  form  of  an  affidavit  yet  contain 
besides  all  the  essentials  of  a  petition.'' 

Considered  as  an  affidavit,  it  must  contain  all  the  statute 
essentials  of  one.  If  it  does  not  aver  the  claim  to  be  just  and 
state  the  amount  which  the  plaintiff  believes  he  ought  to  recover, 
the  petition,    though  with    the  plaintiff's    oath  appended,  will 

Redus  V.    Wofford,   4   Smedes  &  M.  »  Wiley  v.  Bennett,  9  Bax.  581. 

579.    Omission  to    sign  held   fatal:  ^ Dygj.  ^  pjJQt^  31  jH    qq.  Single- 

Watt «.  Carnes,  4  Heisk.   533;  Harg-  ton  ?;.  Wofford,  4  111.  576;  Simon  ij. 

adine    v.  Van    Horn,    72   Mo.   370;  Shelter,  25  Kan.  155. 

Cohen  «.  Manco,  28  Ga.  27.  *  Wright  «.    Smith,   66    Ala.  545; 

1  Kruse  v.  Wilson,  79  111.  238;  En-  Johnson  v.  Hannah,  Id.  127. 
glish   V.    Wall,  12   Rob.    (La.)    132;    .      ^  Minniece «.  Jeter,    65  Ala.  222; 

Simon  v.  Stetter,  25  Kan.  155;  Farm-  Dorr  d.  Clark,  7  Mich.  810. 

ers'   Bank  -o.   Gettinger,     4  W.   Va.  *  Miller  v.  Chandler,   29   La.  Ann. 

305;  Cook  v.  Jenkins,  30  Iowa,  452;  88;  Watts  v.  Harding,  5  Tex.  886. 

TVTiite  V.  Casey,  25  Tex.  552.  » Dunn  v.  Crocker,  22  lud.  8:24. 


THE    AFFIDAVIT-^-MATTER    AND    FORM.  85 

not  answer  tlie  purpose  of  an  affidavit,  where  such  sworn  facts 
are  required  as  a  pre-requisite  to  attacliinent, ^ 

When  the  petition  or  dechiration  is  referred  to,  in  the  affida- 
vit, for  essential  facts,  it  ought  to  be  attached  to,  and  made  part 
of  the  affidavit,  so  that  the  oath  of  the  affiant  may  include 
such  facts. 2  A  defective  dechiration  may  be  aided  by  the 
attachment  papers. ^ 

The  rule  of  construction  is  to  insist  upon  a  strict  compliance 
with  statutes  authorizing  attachments.*  Courts  should  observe 
this  rule  in  using  their  discretionary  power,  in  judging  of  the 
sufficiency  of  affidavits,  where  discretion  is  allowed;  tliey 
should  guard  against  the  granting  of  writs  upon  loose  and  im- 
perfect affidavits.  5  Such  strictness  should  not  preclude  a  proper 
indulgence,  within  the  bounds  of  their  discretion,  in  consider- 
ing the  sufficiency  of  affidavits  to  obtain  an  attachment.  If  the 
affidavit  is  such  as  to  require  the  officer  ,to  exercise  his  judg- 
ment, he  should  grant  the  writ  if  he  believes  the  law  to  have 
been  complied  with  substantialh^^ 

The  reasons  of  the  rule  of  strict  construction  are  found  in 
the  harshness  of  the  remedy,  and  the  fact  that  it  is  out  of  the 
ordinary  course  of  practice.'''  For  these  reasons,  and  especially 
because  the  remedy  is  statutory,  there  can  be  no  valid  writ  of 
attacliment  without  a  sufficient  affidavit,  as  already  shown. 

1  Endel  v.  Liebrock,  33  Ohio  St.  ^Talcottu.  Rosenberg,  8  Abb.  Pr. 
254.  N.  S.   287:    Held  that  a  liberal  in- 

2  Crandall  v.  McKa3e,  13  N.  Y.  diligence  may  be  extended,even  upon 
Sup.  Ct.  483:  affidavit  sustained,  questions  Involving  jurisdiction; 
though  the  annexed  copy  of  the  com-  and  that  if  the  facts  legally  tend  to 
pl'iint  was  not  expressly  made  a  part  support  the  allegation  that  the  de- 
of  the  affidavit.  feudant  has   assigned    and  disposed 

^  Kiug  «.  Thompson,   59   Ga.  38);  of,  or  is  about  to  a,-sign   or  dispose 

Kolb  f.  Cheney,  63  Ga.  683.  of  his  property  with    intent    to    de- 

*  Campbell  v.  Hall,   McCahon,  53;  fraud  his  creditors,  it   will  be  suffi- 

Parker«.  Scott,   64  N.  C.  118;   Van  cient.     Also,  Booth  v.  Rees,  26  111. 

Norman  ».    Jackson  Circuit  Judge,  45;  Jackson  «.  Burke,  4  Heisk.  610: 

45  Mich.  204;  Lewis  v.  Kennedy,  3  Strict  as  to  the    grounds,   but  liberal 

G.Green,  57;  Warner  v.  Everett,  7  as  to  the  ajiplication  of  the  remedy, 

B.  Mon.  262.  ^  McDaniel  v.  Gardner,  34  La.  Ann! 

5  Skiff  11.  Stuart,  39   How.  (N.  Y.)  342;  Bu-sey  v.  Rothschilds,    26  La. 

Pr.  385;  Lawrence  v.   Sleadman,  49  Ann.  258;    Leonard  v.   Stout,  36  N« 

ill.  270.  J.  L.  370. 


86  THE    INSTITUTION    OF    THE    SUIT. 

In  the  construing  of  statutes,  it  is  not  the  rule  to  treat  the 
language  as  sacramental,  so  that  it  must  be  embodied  verhatiin 
in  an  affidavit  in  hiying  the  preseril)cd  grounds  for  an  attach- 
ment, unless  a  form  is  provided.^  Wlicn  the  plaintilf  is  required 
to  SM'ear  that  the  debt  he  sues  upon  is  due  upon  express  or 
implied  contract,  equivalent  words  are  usually  allowable;  as 
that  the  claim  is  due— the  defendant  is  now  indebted — the 
defendant  is  really  obligated  upon  con  tract.  3  But  when  the 
requirement  is  that  the  affiant  must  swear  that  lie  is  entitled 
to  recover  a  stated  sum  over  and  above  all  counter  claims 
known  to  him,  it  is  not  enough  to  swear  that  he  is  "justly 
entitled  to  recover  said  sum;"^  but  a  sworn  averment  that  the 
debt  is  due  "  over  and  above  all  discounts  and  set  ofFs  "  meets 
the  requisition.'*  The  cause  of  action  must  be  shown  in  the 
affidavit.  5 

Sec.  4.  The  AfHdavit— Indebtedness. 
The  principal  averments  are  the  indebtedness  of  the  defend- 
ant, and  the  grounds  which  warrant  the  remedy  by  attachment. 
Both  these  are  absolutely  necessary.  The  first  is  essential  as  in 
all  actions  for  debt  upon  contract,  and  not  moi'e  emphatically 
so  in  attachment  suits  than  in  other  forms  of  action,  except 
that  there  must  be  a  preliminary  showing  of  such  liability  by 
means  of  affidavit,  and  there  must  be  such  certainty  of  state- 
ment as  the  statute,  upon  which  the  suit  is  based,  may  require 
in  any  case. 

1  Parmele  «.  Johnson,  15  La.  429;  417,  (overruling,  Whitney  «.  Bru- 
Sawyers.  Arnold,  1  La.  Ann.  315;  nette,  15 Wis.  61  and  Bowen  v.  Slo- 
CrossD.  McMaken,  17  Mich.  511;  cum,  17  Id.  181;)  Oliver  v.  Town  & 
Ware«.  Todd,  1  Ala.  199;  Graham  v.  Watson,  38  Id.  328;  Mairet  ?;.  Mar- 
Ruff,  8  Id.  171 ;  Wiltse  «.  Stearns,  13  riner,  34  Id.  582 ;  Ruthe  v.  R.  R.  Co. 
Iowa,  2S3;  Mandel  «.  Feet,  18  Ark.  37  Id.  344,  (overruling  Blackwood 
236;  Keunon  v.  Evans,  36  Ga.  89;  v.  Jones,  27  Wis.  498;)  Creasser  v. 
Boyd  «.  Buckingham,  10  Humphreys,  Young,  31  Ohio  St.  57;  Sleet  v.  Wil- 
434;  Bank  of  Alabama  v.  Berry,  2  liauis, 21  Id  83;  Ludlow  v.  Ramsay, 
Humphreys,  443;    Commercial  Bank  11  Wall.  581. 

V.  Ulman,  10  Smedes  &  M.  411 ;  Dan-  s  Ruppert  v.  Hang,  87  N.  Y.  141. 

dridge  z).  Stevens,  13   Id.  723;  Lee®.  *  Lampkin  «.    Douglass,    37  Hun. 

Peters,  1  Id.  503;  Wallis  v.  Wallace,  517. 

6  How.  (Me.)  254.  ^  Bennett  v.  Edwards,  37  Hun.  243. 

2  Trowbridge  v.  Sickler,    43   Wis. 


TnE    AFFIDAVIT INDEBTEDNESS.  87 

Tlie  affidavit,  in  compliance  with  such  statute,  must  positively 
ewear  that  the  debt  is  due  and  just, — that  it  arises  upon  con- 
tract,— that  the  obligation  is  certain  though  the  time  of  payment 
lias  not  arrived, — whatever  the  requirement  may  be.  Where 
the  statement  of  a  contract  as  the  basis  of  indebtedness  is 
required,  it  will  not  do  to  narrate  facts  upon  which  a  contract 
may  be  inferred,  but  the  plaintiff  must  swear  to  the  existence 
of  a  contract,  and  the  nature  and  amount  of  the  demand. ^  lie 
need  not  set  forth  the  contract  with  the  particuhirity  necessary  in 
a  declaration,  but  should  state  that  the  alleged  indebtedness  is 
founded  upon  contract.  There  might  be  such  a  narration  of 
facts  as  would  be  equivalent  to  such  a  statement,  precluding  any 
other  conclusion,  which  the  court,  in  the  exercise  of  discretion, 
could  accept. 2 

Where  the  character  of  the  debt  is  required  to  be  stated,  an 
omission  of  sneh  statement  is  fatal ;^  but  there  is  no  need  of 
such  particularity  in  the  afiidavit  where  the  statute  does  not 
require  it,  and  where  it  is  not  necessary  to  enable  the  court  to 
grant  the  writ  of  attachment;*  for,  like  other  allegations,  it 
may  there  be  inserted  only  in  the  petition  or  declaration. 

If  the  plaintiff  fails  to  make  the  requii-ed  averment  of  the 
debt  in  his  affidavit,  the  attachment  may  be  vacated  on  applica- 
tion of  one  who  acquires  interest  subsequent  to  the  issue  of  the 
writ.  5     And  this  is  so,  though  the  personal  suit  be  unimpeach- 

>  Bartlett    v.   Ware,   74   Me.    272;  29;  /nre  Holliugshead,6  AVend.  553; 

Belfast    Savings   Bauk   v.   K.    L.   &  Sullivan    «.  Fugate,    1    Heisk.    20; 

L.  Co.,  73  Me.  404;  Quarles  v.  Robin-  Smith  «.  Luce,  14  Wend.  237 ;  Cox  v. 

son,  1  Chandler,  29;  Hale  v.  Chand-  Waters,34Md. 460;  Marshall?). Alley, 

lor,  3  Mich.  531;  Wilson  v.  Arnold,  25  Tex.  342;.Yarnell  v.  Haddaway, 

6  Mich.  98,  104;  Russell  «.  Gregory,  4  Harrington,  (Del.)  437;  (See  Wright 

62  Ala.    454;    Lyon  v.  Blakesly,  19  «.  Hobson,  Id.  382.)  Rouss  y.  Wright, 

Hun.  299 ;  Jacoby  v.  Gogell,  5  Serg.  &  14  Neb.  457. 

Rawlo,  450;  Wilmerding  «.  Cunning-  *  Crawford  v.  Roberts,  8  Or.  324; 

ham,  65  How.   Pr.  344;    Wallach  v.  O'Brien  ».  Daniel,  2  Blackford,  290; 

Sippilli,  Id.  501.  Fleming  v.  Burge,  6  Ala.  373 ;  Starke 

2Ruthe  V.  Green  Bay  &  Minn.  R.  v.    Marshall,  3   Ala.  44;    Bartlett  «. 

R.  Co.,  37  Wis.  344;  Robinson  v.  Bur-  Ware,  74  Me.  272;  Irvin  v.  Howard, 

toil,  5  Kan.  293;  Klenk  «.  Schwalm,  37  Ga.  18;  Wilkins  v.  Tourtellott,  28 

19  Wis.  111.  Kan.  825. 

"  Quarles  v.  Robinson,  1  Chandler,  ^  Smith  ^,  Davis,  29  Hun.  301,  306. 


88  THE    INSTITUTION    OF    THE    SUIT. 

able  in  its  pleadings,  and  result  in  judgment  for  the  plaintiff 
for  the  whole  debt;  for,  though  the  debt  be  due  at  tLe  time  of 
the  making  of  the  affidavit,  no  valid  writ  can  be  then  issued 
unless  the  court  has  the  sworn  showing  that  it  is  due,  and 
therefore  no  lien  can  be  created  on  the  property  attached  under 
a  writ  issued  without  the  required  averment  of  the  debt,  in  the 
affidavit.  He  who  acquires  interest  in,  or  ownership  of  attached 
property,  after  such  writ  has  been  issued  or  even  after  seizure 
thereunder,   may  intervene  and  have  the  attachment  vacated. 

Where  the  maturity  of  the  defendant's  obligation  is  required 
to  be  inserted,  an  affidavit  all'.'ging  the  indebtedness  without 
averring  it  to  be  due,  would  be  defective.^  There  should,  in  such 
case,  be  a  positive  averment  of  the  sum  due,  and  the  action 
should  be  confined  to  it. 

Should  the  indebtedness  be  stated  ag  exceeding  a  certain  sum 
mentioned,  the  statement  would  be  understood  as  confined  to 
the  amount  mentioned,  and  the  words  averring  it  to  be  more 
would  be  treated  as  liarmless  surplusage. ^  There  must  be 
nothing  conjectural,  merely  inferential,  in  the  statement  of  the 
indebtedness;  declaration  upon  unliquidated  accounts  is  too 
indefinite;  but  strict  construction  of  such  statutes  as  require 
definite  statement  of  amount  is  not  to  be  carried  to  such  extrem- 
ity as  to  defeat  the  will  of  the  legislator  in  providing  the 
remedy  of  attachment.-^ 

W^hen  the  action  is  for  breach  of  contract,  it  is  sufficient  to 
show  the  sum  claimed  to  be  due  over  and  above  all  discounts 
and  set-offs.  4 

The  affiant  need  not  set  forth   every  item  of  the  plaintiff's 

^  Mathews  v.  Densmore,  43  Mich.  Heidenheimer,  55  Tex.  644. 

4G1,  408;   Wells  ■«.  Parker,  26  Mich.  s  Phelps  «.  Young,  1  111.  256;  Mc- 

102;  Cross  ?).  McMaken,  17  Id.  511;  Clanahan    ®.   Brack,    46  Miss.   246; 

Galloway  «.  Holmes,  1  Doug.  (Mich.)  Turner  v.  McDaniel,  1  McCord,  552; 

350 ;  Friedlander  «.  Myers,  2  La.  Ann.  Hnlsten  Manf.  Co.  %.  Lea,  18  Ga.  647 ; 

920;  Munroe  «.  Cocke,  2  Cranch.  C.  Theirraan  v.  Vahle,32  Ind.  400;  Haf- 

C.  405;  Lathrop  ».  Snyder,  16  Wis.  ley  «.  Patterson,  47  Ala.  271 ;  Gutman 

293;  Levy  v.  Levy,  11  La.  581.  «.  Va.  Iron  Works  Co.,  5  W.  Va.  22- 

2  Nelson  v.  Munch,  23  Minn.  229;  *  Alford  v.  Cobb,  28  Hun.  22,  in  ex- 

Flower  v.  Griffith,  12  La.  345;  Elara  position  of  Code  Civ.  Proc.  §g  685, 

V.  Barr,  11  La.  Ann.  622;  Henrie  «.  63G. 
Sweasey,  5  Blackford,  273 ;  Stewarts. 


THE    AFFIDAVIT INDEBTEDNESS. 


89 


clriiin,  when  only  the  nature  of  it  is  required. *  lie  should, 
under  such  I'equiremcnt,  state  Avhether  the  debt  is  by  note,  bill 
or  other  instrument. 2  He  should  state  the  amount  of  the 
claim  with  precision. '  When  an  account  is  annexed  to  the 
affidavit,  under  statute  requirement,  dates  and  accounts  of  differ- 
ent loans  constitutino;  the  amount  should  be  Q-h^en,  if  the  claim 
is  of  such  character.^  When  the  amount  and  the  character  of 
the  del)t  is  properly  stated,  it  is  not  generally  requisite  to 
particularize  all  the  facts  and  cii'cumstances  out  of  which  the 
indebtedness  arose,  ^  though  the  grounds  must  be  stated  with 
such  particularity  as  to  show  whether  they  are  the  proper  sub- 
ject of  an  attachment  suit.^ 

An  affidavit  to  obtain  an  attachment  to  recover  purchase 
money  must  positively  describe  the  property  sold.'  Such 
attachment  may  be  issued  by  an  officer  who  is  authorized  to 
issue  attachments  generally,  though  the  affidavit  has  been  made 
before  an  officer  of  another  county. ^  But  the  affidavit,  wherever 
made,  must  possess  all  the  legal  essentials;  and  among  these  is 
the  statetnent  of  the  price  for  which  the  property  was  sold.^ 


iTheirman  v.  Vahle,  32  Ind.  400; 
Roelofson  v.  Hatch,  3  Mich.  277. 

2  Sullivan  v.  Fugfite,  1  Heisk.  20; 
Pope  V.  Hibernia  Ins.  Co.  24  Ohio  St. 
481. 

3  Enpert  v.  Haug,  87  N.  Y.  141 ;  S. 
C.  62  How.  (N.  Y.)  Pr.  3G4;  Pomeroy 
V.  Ricketts,  27  Hun.  (N.  Y.)  242; 
Barker  v.  Thorn,  20  Mich.  264 :  Held 
that  the  statement  of  indebtedness, 
"  13000,  as  near  as  can  be  specitied 
by  this  denoneut,"  was  suflBcient  un- 
der the  statute  requiring  the  amount 
to  be  specified  "as  near  as  may  be 
over  and  above  all  legal  set-offs."  See 
Pickhardt®.  Anthony,  27  Hun.  (N.  Y.) 
269.  See  Meudes  v.  Freiters,  16  Nev. 
388 :  Overclaim  not  fatal.  Grover  v. 
Buck,  84  Mich.  519. 

*  Cox  V.  Waters,  34  Md.  460:  Held, 
under  the  Md.  Code. 

^  Weaver  v.  Hay  ward,  41  Cal.  117; 
Ellison  V.  Tallon,  2  Neb.  14.     But  in 


Tenn.,  the  fact  that  steamboat  mater- 
ials were  furnished  within  that  State 
must  be  alleged  in  the  petition,  in 
order  to  sustain  an  attachment  to  re- 
covei-adebt  for  the  materials :  Emory 
Iron  and  Coal  Co.  v.  Wood,  6  Heisk. 
198. 

ePiichter  v.  Wise,  3  Hun.  398; 
Ruthe  V.  Green  Bay  &  Minn.  R.  R. 
Co.,  37  Wis.  344 ;  Kiefer  v.  Webster, 
13  N.  Y.  Sup.  Ct.  526 ;  Lyon  v.  Blakes- 
ley,  19  Hun.  299.  In  Oregon,  the  ulti- 
mate, not  the  probative  facts  are  re- 
quired: Crawford  v.  Roberts,  8  Or. 
324.  In  Mich.,  the  claim  must  be 
sworn  to  be  due:  Mathews  u.  Dens- 
more,  43  Mich.  461. 

''  Bruce  v.  Conyers,  54  Ga.  678 :  rel- 
ative to  personal  property.  WaxeU 
baum  V.  Paschal,  64  Ga.  275. 

8  Wicker  v.  Scofield,  59  Ga.  210. 

9  Camp  V.  Cahn,  53  Ga.  558. 


90  THE    INSTITUTION    OF    THE    SUIT. 

This  species  of  attachment  is  exce])tional,  ane}  therefore  the 
affidavit  is  peculiar.  It  is  anahjgous  to  attachmment  to  enforce 
specific  liens,  such  as  are  anthorized  in  several  of  the  States, 
since  it  has  reference  only  to  the  jn-operty  described  in  the 
affidavit.  There  may  be  no  pre-existing  lien,  but  the  law 
authorizes  the  creation  of  a  hypothetical  lien  on  the  thing  sold  to 
the  amount  of  the  price,  upon  the  creditor's  compliance  with 
the  statutory  requirements.  Such  an  attachment  bears  a  different 
relation  to  other,  competing  attachments  to  secure  ordinary 
debts,  than  would  one  of  their  own  species.  The  vendor,  under 
the  law,  looks  to  the  identical  thing  which  he  has  sold,  in  his 
effort  to  recover  the  purchase  money;  and,  if  he  has  the  vendor's 
lien  upon  it,  that  would  not  be  displaced  by  an  ordinary  attach- 
ment though  the  latter  should  be  prior  in  the  order  of 
date. 

Sec.  5.    The  Affidavit— Grounds. 

The  grounds  for  the  writ  can  be  no  other  than  those  author- 
ized by  the  statute  upon  which  the  plaintiff  proceeds,  i  He 
must  swear  to  one  or  more  in  his  affidavit.  One  good  ground 
is  sufficient. 2  He  must  bring  himself  strictly  witliin  the 
authorization  for  the  extraordinary  remedy  which  he  invokes. 
However  artistically  he  may  have  set  forth  the  indebtedness,  it 
will  avail  him  nothing  if  he  should  fail  to  show  that  the  defend- 
ant is  a  non-resident,  or  has  absconded,  or  is  about  to  abscond, 
or  is  secreting  his  property  or  himself  to  avoid  legal  proceed- 
ings, or  some  other  ground  specified  in  the  statute.  And  the 
statement  of  such  fact  must  be  plain  and  unequivocal,  such  as 
would  subject  him  to  all  the  consequences  of  any  wrong  done 
thereby  in  case  the  statements  should  prove  false. 

The  laying  of  the  grounds  must  be  substantially  according 
to  statute,  though  not  necessarily  in  the   employment   of  the 

1  Matter  of  Fitch,  2  Wendell,  298;  Y.)  598;  Matter  of  Bliss,  7  Id.    187; 

Tallman   v.  Bigelow,  10  Id.  420 ;    Ex  Pierse  v.  Smith,  1  Minn.  82 ;  Morri- 

parte  Haynes,  18  Id.  611 ;    Smith  v.  son  v.  Lovejoy,  6  Id.  183. 

Luce,  14  Id.  237;  Matter  of  Brown,  ^  Lawver  v.  Langhans,  85  111.  138; 

21  Id.   316 ;  Ex  parte  Robinson,  Id.  Keith   v.  Stetter,  25   Kan.    155 ;    Me- 

672;  Matter  of  Faulkner,  4  Hill  (N.  Collem  d.  White,  23  Ind.  43. 


THE    AFFIDAVIT — GKOUNDS.  91 

same  verbiage. *  Any  nicety  that  wonlcl  defeat  the  purpose  of 
tlie  law  would  be  too  fine.  While  courts  have  no  power  to 
issue  the  writ  except  what  is  conferred  by  statute,  yet  they 
must  use  their  judiJjment  in  determining:  whether  the  statute 
has  been  complied  with  by  the  plaintiff  in  making  his  prelimi- 
nary showing,  and  whether  a  slight  deviation  from  the  require- 
ments of  the  statute  is,  in  any  case,  sufficient  to  vitiate  the 
affidavit  and  render  it  insecure  as  the  foundation  of  an  attach- 
ment suit.  Law  has  been  defined,  "A  solemn  expression  of 
legislative  will;"  and  if  the  will  of  the  legislature  can  be  seen, 
through  a  statute,  and  the  plaintiff,  in  making  an  affidavit,  has 
virtually  and  substantially  complied  with  that  will,  the  court 
should  sustain  the  affidavit. 

On  the  other  hand,  the  rights  of  the  defendant  are  to  be  pro- 
tected. He  is  not  to  be  held  as  defendant  under  an  attachment 
suit*in  the  absence  of  a  substantial  compliance  with  the  law,  on 
the  part  of  the  plaintiff.  Fatally  defective  affidavits  are  to  be 
treated  as  powerless  in  their  eftbrts  to  move  the  court  to  the 
exercise  of  jurisdiction.  There  is  to  be  no  guessing  at  the 
meaning.  There  is  to  be  no  constructural  emendation  of 
allegations  positively  bad.  There  is  to  be  no  supplementing 
of  the  oath,  to  make  it  cover  the  requirements  of  the  statute, 
by  an  over-liberal  rendering  on  the  part  of  the  court.  Where 
the  affidavit  is  fatally  insuflicient,  and  no  application  to  amend 

1  Parker  v.   Scott,   G4  N.   C.  118;  503;      Commercial     Bank    v.     Ull- 

Leonard  «.  Stout,  36  N.  J.  L.   ;i70;  man,      10      Smedes      &     M.     411; 

Curtis  «.  Settle,  7  Mo.  452;  Campbell  Dandridge    v.    Stevens,    12    Smedes 

®.  Hall,  McCabon,  53;  Talcott  v.  Ros-  &  M.  723;  Bussey  v.  Rothscbilds,  26 

enberg,  8  Abb.  Pr.  N.  S.  289;  Cham-  La.  Ann.  258;  AVallis  v.  Wallace,  6 

bers -y.  Sloan,  19  Ga.  84;  Keunou  v.  How,   (Mi.)  254;    Earl  v.  Camp,  16 

Evans,  36  Ga.  89 ;  Van  Kn-k  v.  Wilds,  Wend.  502 ;  Parker    v.   Walrod,   Id. 

11  Barb.  520;   Cross  v.  McJMaken,  17  514;  Wiltse-i;.  Stearns,  13  Iowa,  282; 

Mich.  511;  Skiff  «.  Stuart,  39    How.  Beach  «.  Botsford,  1    Doug.    (Mich.) 

(N.  Y.)Pr. 385;  Graham  ij.  Huff, 8  Ala.  199;  Leroy  v.  East  Saginaw  Ry.  18 

171;  Ware  v.  Todd,  1  Ala.  199;  Bank  Mich.  233;  Watkins  v.  Wallace,  19 

of  Ala.  v.  Berry,  2  Humphreys,  443;  Mich.  57,  74;  Mandel  «.Peet,  18  Ark. 

Boyd  ®.  Burkingham,  10  Humphreys,  23G;    Sellick    v.    TwesduU,    Dudley, 

434;  Ilunyan  v.  Morgan,  7  Humph-  (Ga.)  196;    Levy  •?).  Milhnan,  7  Ga. 

reys,   210;  Sawyer   v.  Arnold,!  La.  167;  Phelps    v.   Young,    I    111.  256; 

Ann.  315 ;  Parmele  v.  Johnston,  15  La.  Hilton  v.  R-^ss,  9  Neb.  406. 
429;  Lee  v.  Peters,  1  Smedes  &  M. 


92  THE    INSTITUTION    OF    THE    SUIT. 

is  made,  and  no  amendment  is  actually  effected,  application  for 
the  issuance  of  a  writ  of  attachment  should  be  denied.  ^ 

Tliere  may  be  such  a  statement  of  fraud  and  intent  to  defraud 
made  against  the  debtor,  on  account  of  his  disposition  of  his 
property  to  defeat  the  claims  of  creditors,  as  would  be  sufficient 
for  the  arrest  of  the  debtor,  and  yet  the  allegations  may  be 
inadequate  to  authorize  a  writ  of  attachment  because  of  the 
absence  of  some  necessary  averment. ^  On  the  other  hand, 
without  setting  out  specific  acts  of  fraud,  general  statements 
in  accordance  with  the  statute  requirements  will  warrant  the 
issuance  of  the  writ.^  • 

To  swear  merely  that  the  debtor  has  left  the  State  without 
adding  that  he  left  with  the  intention  of  removing  his  goods 
from  the  State;  (or  that  he  is  concealing  himself,  without  add- 
ing "  to  avoid  process;")  when  the  latter  is  required  to  be  stated, 
is  insufficient. 4  Setting  forth  such  facts  in  an  intelligible  way 
without  using  statute  phraseology,  will  answe;-  the  demands  of 
the  law;^  but  general  avei-ments,  not  coimecting  the  plaintiff 
with  the  fraudulent  acts  charged  so  as  to  show  that  he  is  inter- 
ested in  his  application  for  the  attachment,  would  be  entirely 
too    vao-ue.     For   instance,  to  aver  merely  that  the  debtor   is 

1  Campbell  v.  Hall,  McCahon,  53 ;  La.  Ann.  36 ;  McCulloch  v.  Foster,  4 

Drew    V.   Dequindre,   2    Doug.    93;  Yerger,   162;  Wharton  v.  Conger,  9 

Weimeister«.Manville,  44Mich.408;  Smecles  &  M.  510;  Croxall  v.  Hutcb- 

Poa"-e  «.  Poage,  3  Dana,  579;  Skiffs.  ings,  7    Halsted,   84;  Weimeister    v. 

Stuart,   39    How.    (N.   Y.)    Pr.   385;  Mauville,  44  Mich.   408;    Messner «. 

Napper    v.   Noland,   9   Porter,   218;  Hutchins,  17  Tex.  597;  Levy  ».  Mill- 

Claussen  v.  Fultz,  13  S.  C.  476;   Ben-  man,  7  Ga.  167;  Brown  v.  McCluskey, 

nett  «.  Avant,  2  Sneed,  152;  Wright  i\  26  G a.   577;    Allen  v.   Fleming,    14 

Smith,  66  Ala.  545 ;  Davis ».  Edwards,  Rich.    196;    Winkler    v.  Barthel,  6 

Hardin,  342;  Hamilton  v.  Knight,  1  111.  App.  111. 

Blackford,  25;    Powers   v.   Hurst,  3  '  Achelis  y.  Kalraan,  60  How.  (N. 

Blackford,  229;  Devries  v.  Summit,  Y.)  Pr.  491 ;  Claussen  «.  Fultz,   13  S. 

86  N.  C.  126;    Mantz  v.   Heudiey,  2  C.  476;  Cobb  ?;.  Force,  6  Ala.  468. 

Heniu"-   &  Munl'ord,  308;   Manly  «.  *  Auerbach  ■?;.  Hitchcock,  28  Minn. 

Headley,  10  Kan.  88;  Wallis  »    Mur-  73;  Sharpless  «.  Zeigler,  92  Pa.  St. 

phy,  2  Stewart,  15;  Hargadiue  «.  Van  467;  Stevens  ■«.  Middlelun,  26  Hun. 

Horn,  72   Mo.  370;  Lane    «.  Fellows,  470. 

1    Mo.  251;    Alexander   ■;;.  Haden,  2  *  Crayue  ^).  Wells,  2  111.  App.  574; 

Mo.   187;    Millaudon  v.   Foucher,  8  Winkler  «.  Barthel,  6  111.  App.  111. 

La.  582;  New  Orleans  «.  Garland,  11  °  VanLoon  ■B.Lyons,  61  N.  Y.  22; 

La.  Ann    438;    Reding  v.  Ridge,  14  Free  «.  Hukill,  44  Ala.  197. 


TITE    AFFIDAVIT GROUNDS.  93 

ahonf  fo  trnnsfbr  liis  property  f\ir  the  purpose  of  (lofi-andiii^:  ln's 
creditors,  vet  to  omit  statirif)^  that  the  phiiiitilt'  woiihl  lose  his 
tlel)t  unless  allowed  the  remedy  sought,  or  equivalent  words,  was 
held  erroneous,  and  the  attidavit  declared  defective/ 

Reasonable  latitude  must  be  given  to  the  phraseology  of  the 
sworn  statement.  Where  oath  '_'  to  the  best  of  the  knowledge 
and  belief,"  of  the  affiant,  is  required,  it  will  suffice  to  swear  to 
information  received  of  defendant  and  believed  by  deponent. 2 
But  it  would  not  be  enough  to  swear  "  to  the  best  of  his  knowl- 
edge" only,  or  "to  the  best  of  his  belief"  only.^ 

If  a  partnership  firm  are  plaintifi"s,  it  is  the  knowledge  and 
belief  of  the  members  of  the  firm  which  should  be  sworn  to, 
but  the  afiidavit  would  hold,  as  a  sufficient  compliance  wnth  the 
law,  if  the  knowledge  and  belief  of  the  firm  be  the  subject  of 
the  oath.* 

Where  the  plaintiff  is  required  to  make  a  showing  of  certain 
circumstances,  to  satisfy  the  court  that  he  is  entitled  to  the 
issuance  of  the  writ,  his  oath  that  he  believes  those  facts  is  no 
proof  of  them.  Considering  the  fallibillity  of  human  judg- 
ment, and  the  partiality  which  a  litigant  usually  feels  toward 
himself,  the  court  is  obliged  to  receive,  with  much  allowance, 
the  honest  statements  of  an  affiant  as  to  "  information  received," 
and  what  he  "  verily  believes,"  if  the  law  makes  the  issuance 
of  the  writ  depend  upon  preliminary  proof  of  circumstances. 
Indeed^  the  plaintiff's  belief  is  not  a  circumstance  to  be  taken 
at  all  into  the  account,  under  such  requirement. ^ 

One  swearing  upon  information  received,  must  state  the 
absence  of  his  informant,  where   the  statute  requires  it;  and  a 

»  Sheffield  v.  Gay,  32  Tex.  225.  *  Stewart  v.  Katz,  30  Md.  334. 

2  Blake  v.  Bernliard,  6  Thompson  ^  HelJman  v.  Fowler,  24  Ark.  285; 
&  C.  (N.  Y.)  74;  Howell  v.  Kings-  Williams  «.  Martin,  1  Met.  (Ky.)42; 
bury,  15  Wis.  273.  Dunlevy  v.  Schartz,  17  Ohio  St.  640 ; 

3  Garner  v.  AVhite,  23  Ohio  St.  192 ;  Sydnor  v.  Tolman,  6  Tex.  189 ;  Pierse 
Bergh  V.  Jayne,  7  Martin,  N.  S.  98;  v.  Smith,  1  Minn.  82;  Morrison  v. 
McHaney  1).  Cawthorn,  4.Heisk.  508.  Lovejoy,  6  Minu.  183;  Murphy  v. 
Swearing  to  belief  has  been  held  Purdy,  13  Id.  422;  Tallman  v.  Bige- 
sufficient  in  New  York:  Ex  jjarte  low,  10  Wend.  420;  Ji7.i;  parte  Robin- 
Ilaynes,  18  Wend.  611.  Matter  of  son,  21  Wend.  672;  Matter  of  Faulk- 
Fitch,  2  Wend.  298.  See  Smith  v.  ner,  4  Hill,  598;  Kiugsland  «.  Cow- 
Luce,  14  Wend.  237.  man,  5  Hill,  003;  Matter  of  Bliss,  7 


94:  THE    INSTITUTION    OF    THE    SUIT. 

neglect  of  such  statute  provision  will  render  the  affidavit  insuf- 
licient.i  There  is  a  diiierence  between  believing  and  having 
reason  to  believe;  and  where  the  State  requires  oath  to  the 
latter,  it  is  not  a  compliance  to  confine  the  oath  to  the  foriner.^ 
Distinction  is  made  between  material  and  less  important  alle- 
gations, with  regard  to  positive  knowledge  of  them;  and  the 
former  cannot  be  received  merely  upon  oath  of  information  and 
belief,  where  positiveness  is  required ;3  nor  upon  apprehension 
and  belief. 4  Distinction  is  made  between  swearing  that  affiai\t 
thinks  and  swearing  that  he  believes/^  but  such  diiferentiation 
seems  too  fine  Mdien  only  opinion  is  the  subject  of  the 
oath. 

Material  allegations,  even  charging  fraud  as  a  ground,  may 
be  upon  information  and  belief,  if  ancillary  facts,  tending  to 
sustain  the  material  averments,  be  positively  averred  in  the 
affidavit.^  Positively  sworn  averments  are  often  nothing  more 
than  reasonable  belief  attested  under  oath.' 

The  indebtedness  is  a  material  averment  to  be  alleged  posi- 
tively. ^  If  on  belief,  the  source  of  information  should  be 
stated.  9 

To  charjTe  abscondins:  as  a  grround  for  attachment,  it  is  not 
enough  to  aver  that  the  defendant  is  in  another  State  and  is 

Hill,   187;    Dewey  v.  Green,  4  Den.  Flint,  21  111.  80. 
(N.  Y.)  93;  Camp  v.  Tibbets,  2  E.  D.  *  Brown  v.  Crenshaw,  5  Bax.  584. 
Smith,  (N.  Y.)  520;  Hill  v  Bond,  23  In  N.  C.  indebtedness  and  departure 
How.    (TST.  Y.)  Pr.   272;    Brewer    v.  from  the  State  being  sworn  positive- 
Tucker,  13  Abb.  (N.  Y.)  Pr.  76.  ly,  "  intent  to  avoid  summons"  was 

1  Steuben  Co.  Bank  v.  Alberger,  78  sworn  on  information  and  belief,  and 
N.  Y.  252.  In  Ala.  the  attorney  of  a  held  sufficient:  Hessw.  Bower,  76  IST. 
non-resident  client  swore  that  he  was  C.  428. 

informed  and  believed  and  therefore  ^  Rittenhouse  v.  Harman,  7  W.  Va. 

stated  that  the  defendant,  who  was  a  380. 

non-resident,   was    justly    indebted,  *  As,  that  the  facts  sworn  on  infor- 

etc,  and  the  affidavit  was  held  good :  mation  had  been  stated  to  the  defend- 

Mitchell  V.  Pitts,  61  Ala.  219.    Under  ant  and  that  he  had  admitted  their 

similar  circumstances,  held  bad  in  truth:  Blake  ®.  Bernhard,  6  Thomp- 

Georgia:  Neal  v.  Gordon,  60  Ga.  112.  son  &  C.  (N.  Y.)  74;  3  Hun.  397. 

2  Hunt  V.  Strew,  39  Mich.  368.  ^  Simpkins  v.  Malatt,  9  Ind.  543. 

»  Claflin  ».  Baere,  57  How.  (N.  Y.)  Stanton  ©.Poole,  67  Barb.   330; 

Pr.  78;  Greene  v.  Tripp,  11  R.  I.  424;       Black  v.  Scanlon,  48  Ga.  12. 
Archer  v.  Claflin,  31  111.  306;  Dyer  v.  »  Bennett  v.  Edwards,  27  Hun.  352. 


THE    AFFIDAVIT — GROUNDS.  95 

about  to  dispose  of  his  property, i  Non-residence,  tliongli 
a  material  fact  when  it  is  the  ground  of  attachment,  may  be 
a  matter  of  inference  from  the  facts  stated,  if  it  is  the  only 
inference  that  can  logically  be  drawn  from  the  facts. ^  It  could 
not  be  inferred  that  the  defendant  is  a  non-resident  or  an 
abscondinof  debtor  from  the  vao-ae  averment  that  he  has  left 
the  State;  certainly  it  could  not  be  inferred  to  the  exclusion  of 
every  other  hypothesis.  ^  Nor  could  it  be  concluded,  under 
such  averment,  that  his  leavins;  was  with  intent  to  defraud  his 
creditors.-* 

Inference,  to  the  exclusion  of  all  other  hypotheses,  is  not 
required,  but  rather  the  most  probable  inference  from  the  facts, 
in  matters  where  the  statute  need  not  be  followed  literally.^ 

Hearsay  is  not  necessarily  excluded  in  making  the  showing, 
upon  oath,  of  circumstances  required  to  justify  the  issuing  of 
the  writ.  What  has  been  said  by  members  of  a  runaway  debtor's 
family  may  be  mentioned  as  contributory  to  the  conclusion 
that  he  has  absconded;  or  that  he  has  left  the  State  permanently; 
or  that  he  has  concealed  goods.  The  court  must  be  satisfied 
that  there  is  good  ground  for  the  attachment  under  the  statute, 
though  the  proof  fall  short  of  what  would  be  necessary  to  sus- 
tain a  judgment  for  the  plaintiff  upon  the  trial.  Or,  if  the 
clerk  is  to  have  discretion  and  be  satisfied  upon  evidence  before 
issuing  the  writ,  the  rule  is  the  same:  for  the  clerk  is  the  right 
hand  of  the  court,  and  the  writ  is  issued  through  him  rather 
than  by  him. 

"Whatever  the  circumstances  adduced,  the  affiant  must  swear 
to  his  belief  of  tlieir  truth.  This  requirement  is  a  safeguard 
to  prevent  the  ollicer  from  being  trifled  with,  and  to  check  the 
plaintiff  from  trying  doubtful  experiments. 

The  oath  of  attorneys  is  usually  to  knowledge  and  belief.^ 
They  may  not  have  personal  knowledge,  such  as  would  enable 

1  State  V.  Morris,  50  Iowa,  203.  '  Talcott  v.  Rozenberg,  3  Daly,  203, 

2  Mayor,  «&c.,  of  N.  Y.  «.  Genet,  4  (8  Abb.  Pr.  N.  S.  287);  Cooney  v. 
IIuD.  487;  Graham  ti.  Ruff,  8  Ala.  171;  AVhitfield,  41  How.  Pr.  6;  Ware  v. 
McKiernan    v.  Massingill,  14    Miss.  Todd,  1  Ala.  199. 

375 ;  James -y.  Dowell,  15  Id.  333.  ^  Mitchell  «.  Pitts,    61   Ala.    219; 

3  Mutherrin  ®.  Hill,  5  Heisk.  58.  White -y.  Stanley,   29  Ohio   St.  423; 
*  Love  V.  Young,  69  N   C.  65.  Howell  v.  Kingsbury,  15  AVis.  273. 


96  THE    INSTITUTION    OF    THE    SUIT. 

them  to  substantiate  all  the  required  facts  in  the  capacity  of 
witnesses,  but  they  may  have  received  credible  information, 
such  as  has  really  induced  belief;  and  that  is  sufficient  showing 
for  the  issuance  of  the  writ,  to  be  followed  by  the  pleadings  and 
the  testing  of  the  truth  of  such  information  received.  No  one 
can  be  hurt,  since  the  plaintiif's  bond  stands  behind  the  affida- 
vit to  secure  the  defendant  against  any  wrong. 

Where  agents  are  allowed  to  make  the  oath,  if  the  statute 
requires  that  the  plaintiff's  knowledge  and  belief  be  sworn  to, 
the  agent  must  swear  to  his  principal's  knowledge  and  convic- 
tion and  not  to  his  own.i  But  his  personal  information  may 
be  better  than  that  of  his  principal,  and  he  may  swear  to  it  as 
such  when  there  is  no  statutory  impediment. ^  He  is  acting 
for  his  principal  in  making  the  preliminary  showing  to  take 
out  the  process. 

Obviously,  when  he  comes  to  sustain  the  attachment  contra- 
dictorily with  the  defendant,  he  is  a  competent  witness  to  prove 
facts — not  mere  belief. 

It  will  be  understood  that,  as  an  affidavit  is  not  pleading,  no 
artistic  form  of  oath  to  his  authority  is  required  by  the  affiant 
wdien  he  is  an  agent.  His  statement  of  the  fact  anywhere  in 
the  body  of  the  affidavit  will  suffice;  but  "J.  K.  on  behalf  of 
J.  S.  being  duly  sworn"  was  held  not  sufficient.  ^ 

The  necessary  thing  is  certainty,  in  the  compliance  with 
requirements.  Nothing  ambiguous,  in  essential  points,  will  be 
sufficient.  The  plaintiff  must  positively  state  his  grounds, 
whether  absolute  knowledge  is  required,  or  an  absolute  state- 
ment of  the  fact  of  his  knowledge  and  belief,  so  as  to  preclude 
a  second  suit  for  the  same  demand.*  One  of  the  reasons  why 
the  grounds  cannot  be  set  forth  equivocally  in  the  affidavit  is 
found  in  the  harsh  character  of  the  remedy  invoked.  Because 
attachment  is  an  extraordinary  proceeding,  permissible  only  in 
consideration  of  the  danger  the  plaintiff  fears,  in  his  attempt  to 

'Stewart   v.    Katz,    30    Md.    334;  58  AVia.  310;  TVetherwax  c.  Paine,  2 

Dean  «.  Oppenheimer,  2o   Md.  3G8;  Mich.  555. 

Murray  v.  Hankin,  65    How.  Pr.  511.  *  Bond  v.  Patterson,  1  Blackf.  (Ind.) 

2  Rauscli  V.  Moore,  48  Iowa,  611.  34. 

8 Miller  v.  C.  M.  &  St.  Paul  Ry.  Co. 


THE    AFFIDAVIT GROVNDS.  97 

collect  his  dues,  tlie  law  granting  him  tl.e  writ  to  seize  before 
judgment  should  be  strictly  construed;  and  all  liability  of 
oppressing  the  alleged  debtor  should  be  carefully  avoided.  If 
the  defendant  is  a  non-resident,  or  an  absconding  debtor,  or  one 
who  is  fraudulently  disposing  of  his  property,  an  affiant  alleging 
liira  to  be  any  one  of  these  must  make  the  allegation  with  cer- 
tainty. 

If  the  requirement  is  that  the  plaintiff  must  state  the  char- 
acter or  nature  of  his  claim,  he  may  do  so  in  brief  and  ordinary 
language,  without  the  particularity  necessary  to  pleading,  pro- 
vided the  characterization  conveys  the  idea  without  equivoca- 
tion, i  Tliere  is  no  better  rule  than  that  of  following  a  statute 
verhatim,  (if  there  is  no  reason  why  that  cannot  be  done,)  in 
setting  forth  the  grounds  of  attachment  in  an  affidavit. 

Often  it  occurs  that  a  conscientious  affiant  must  qualify  his 
statement  by  some  explanation.  He  may  rightly  do  so,  if  he 
does  not  impair  the  certainty  of  the  required  oath.^  it  would 
not  do  to  say  that  the  defendant  is  indebted  in  a  sum  approxi- 
mating to  a  thousand  dollars,  ^  but  it  would  be  sufficient  to 
state  the  debt  as  exceeding  a  thousand  dollars.*  In  the  latter 
ease,  the  oath  will  be  deemed  certain  in  its  averment  to  the 
amount  of  a  thousand  dollars,  while  in  the  former  it  is  wdiolly 
indefinite. 

Conscientious  explanations  should  be  respected  and  graciously 
received  and  considered  by  the  court,  since  they  may  give 
p-reater  assurance  of  the  truth  of  the  affidavit  than  a  formal  fol- 

o 

1  HolsteiD   Manuf.   Co.  v.   Lea,  18  tainod,   though    the  plaintiff,    after 

Ga.  647;  Force  v.  Hubbard,   26   Id.  stating  a  positive   sum  as  the  debt 

289;  Theirman  ■».  Vahle,  32  Ind.  400.  due  liim,  qualified  it  by   admitting 

^Lampkin  v.  Douglass,  27  Hun.  that  it  might  be  subject  to  set-off. 
517.  Tliough  the  statute  required  Holston  Manuf.  Co.  v.  Lea,  18  Ga. 
the  plaintiff  to  swear  that  he  was  not  647.  However,  if  the  statute  re- 
indebted  to  the  defendant  "in  any  quires  that  the  statement  of  the  debt 
wise  or  upon  any  account  whatever,"  must  be  that  it  is  over  and  above 
the  court  held  an  affidavit  good  in  any  set-off,  the  qualification  just 
which  the  plaintiff  admitted  his  in-  mentioned  would  be  fatal, 
debtedness,  in  "some  small  amount,"  ^  Lathrop  v.  Snyder,  16  Wis.  293. 
contracted  since  the  note  sued  upon  *  Nelson  v.  Munich,  23  Minn.  223; 
was  given.  Turner  v.  IMcDaniel,  1  Flower  v.  Griflith,  12  La.  345. 
McCord,  553.     An   affidavit  w^as  sus- 

7 


98  THE    INSTITUTION    OF    THE    SUIT. 

foM'ing  of  tlie  statute  words  would  give.  It  is  better  tliat  tlie 
plaintiff  lose  his  application  than  that  he  should  succeed  by  a 
positive  averment  which,  in  conscience,  he  ought  not  to  have 
made  without  qualification. 

An  affidavit  that  the  debtor  has  assigned  his  property  and  is 
about  to  assign  it,  was  held  not  necessarily  inconsistent;^  that 
he  has  disposed  of.  part  of  his  property  and  is  about  to  dispose 
of  the  rest,  to  defraud  the  plaintiti's,  was  held  a  consistent  and 
sufficient  averment ;2  but  the  statement  that  the  defendant  has 
"  hastily  removed  his  live  stock  to  another  State  for  the  pur- 
pose of  hindering  and  delaying  the  plaintiff  in  the  collection  of 
his  debt,"  was  not  deemed  such  an  averment  as  would  justify 
attachment. 3  The  allegation  that  the  debtor  has  made  a  pre- 
tended or  simulated  sale  to  avoid  creditors,  is  sufficient  ground.* 
An  averment  that  the  debtor  has  disposed  of  property  to 
defraud  any  of  his  creditors,  is  sufficient,  where  the  statutory 
provision  provides  in  general  terms,  that  attachment  may  issue, 
if  the  debtor  has  "assigned,  disposed  of,  concealed,  etc.,  any 
of  his  property  to  defraud  his  creditors." ^ 

The  requirement  of  certainty,  however,  does  not  altogether 
exclude  alternate  allegations.  While  it  would  be  uncertain, 
should  the  statement  be  that  the  debtor  is  either  a  non-resident 
or  is  a  resident  now  absent  from  the  State;  that  he  is  an  abscond-' 
ing  debtor  or  is  concealing  hie  property  to  avoid  execution,  it 
would  not  be  uncertain  to  state  that  the  debt  sued  upon  is  one 
of  contract  express  or  implied,  where  the  statute  requires  oath 
that  the  sum  due  is  upon  contract  express  or  implied;  for  the 
purpose  of  the  legislator  was  to  confine  attachments  to  suits 
upon  contract,  and  such  affidavit  is  a  sufficient  compliance  with 
the  law,  though  there  is  alternation.®      In  a  petition  or  dcclara- 

'  Nelson  1).  Munch,  23  Minn.  229;  ^  Howell's    Annotated  Statutes  of 

Contra:  Kegel  v.  Schreukhelsen,  37  Michigan,' §  7987;  Allen  v.  Kinyon, 

Mich.    174.     See   Hills  v.   Moore,  40  41  Midi.  281. 

Mich.  210.  6Klenk».  Schwalm,  19  Wis.  Ill; 

2  Auerbach  t).  Hitchcock,  28  Minn.  Hawley  v.  Delmas,  4  Cal.  19.5;  Hop- 
73.  kins  v.   Nichols,  23  Tex.  20G;  White 

3  Craigmiles  v.  Hays,  7  B.  J.  Lea,  v.  Lynch,  26  Tex.  Vd~i,  Se«>  G;irner 
720.  V.  Burle  on.  Id.  348,   and  Cull-ertsoD 

*  Haralson  v.   Newton,  G3  Ga.  163.      v.  Cabeen,  29  Id.  247. 


THE    AFFIDAVIT GROUNDS.  99 

tion,  the  contract  must  be  stated  without  such  alternation;  but 
the  niceties  of  pleading  are  not  essential  to  an  affidavit.  Yet 
even  in  pleading,  in  civil  cases,  facts  miiy  sometimes  be  stated 
in  the  alternative  if  either  is  sufficient  to  establish  a  propo- 
sition. Even  in  libels  for  the  forfeiture  of  property,  stating  a 
charge  in  the  alternative  may  hold  good  if  either  alternative 
constitutes  a  ground  for  which  the  thing  libelled  may  be  for- 
feited. ^  The  particularity  of  criminal  indictments  is  not 
deemed  essential.  The  reasoning  is  that  the  requirement  of 
the  law  is  met,  whichever  of  the  alternatives  may  be  true,  pro- 
vided both  are  good  allegations.  The  same  reasoning  may  be 
applied  to  some  requirements  of  the  attachment  laws,  respecting 
affidavits,  though  inapplicable  to  others.  If  a  statute  limits 
attachments  to  suits  upon  contract  express  or  implied,  the  affi- 
davit may  state  the  debt  to  be  upon  an  express  contract;  it 
may  state  it  to  be  upon  an  iyiplied  contract;  it  may  state 
it  to  be  upon  an  express  or  implied  contract.  But  it  would  not 
do  to  say  that  the  debt  is  in  the  sum  of  one  hundred  or  one 
thousand  dollars;  that  the  defendant  is  a  non-resident  or  an 
absconding  debtor;  that  he  is  concealing  himself  or  his  prop- 
erty to  avoid  creditors,  etc.  Thus,  even  if  both  of  such  alleo-a- 
tions  be  good  grounds, — either  capable  of  standing  alone,  it 
has  been  held  that  they  cannot  be  coupled  disjunctively  without 
impairing  the  legality  of  the  affidavit.  ^  Whenever  two  grounds 
are  thus  disjoined,  and  one  of  them  is  bad,  the  affidavit  cannot 
be  acted  upon  ;3  but  it  is  not  fully  settled  that  two  good  grounds 

1  The  Emily  and  Caroline,  9  Hardin,  65;  Hopkins?;.  Nichols,  2'3 
Wheat.  381;  The  Caroline,  7  Cr.  Tex.  206;  Garner  v.  Burleson,  20 
500,  ?io^e;  U.  S.«.  The  Little  Charles,  Tex.  348;  Culbertson  ^.  Cabeeu,  29 
1  Brock.  348;  The  Merino,  9  Wheat.  Tex.  247;  Allen  v.  Fleming,  14  li'ich. 
891;  The  Samuel,  1  Wheat.  14;  (S.  C.)  196;  Hawley  v.  Delmas,  4 
Jacob  v.  U.  S.  1  Brock.  520;  Parsons  Cal.  195;  Wilke  v.  Colin,  54Cal.  21 - 
on  Shipping  and  Admiralty,  Vol.  2,  Ronaldson  v.  Hamilton,  5  La.  Ann. 
p.  383.  203;  Elam  v.  Barr,  11  La.  Ann.  622; 

2  Kegels.  Schrenkheisen,  37  Mich.  Hickman -y.  Flenoriken,  12  Id.  268; 
175;  Blum  v.  Davis,  56  Tex.  426;  Rogers  «.  Ellis,  1  Handy,  48;  Jewel 
Carpenter  v.  Pridgeu,  40   Tex.   32;  ?;.  Howe,  3  Watts,  (Pa.)  144. 

Guile  V.   McNanny,    14  Minn.  520;  ^  Davis  «.   Edwards,  Hardin,  342; 

Stacy  V.  Stichton,  9   Iowa,  399;  De-  Hagood  «.  Hunter,   1    McCord,   511; 

vail  V.   Taylor,   Cheves,  5;  Wray  v.  Barnard  r.Sebre,  2  A.K.Mnrshall,  lOl; 

Gilmore,  1  Miles,  75;  Shipp  v.  Davis,  Duunenbaum  v.  Scram,  59  Tex.  281. 


100  THE    INSTITUTION    OF    THE    SUIT. 

may  not  T)e  legally  coupled  l)y  the  (lisjnnctive  or  in  an  affidavit; 
indeed,  the  affirmative  lias  been  judicially  maintained. ^ 

There  can  be  little  doubt  that  the  use  of  the  disjunctive  is 
allowable  in  affidavits,  if  the  statute  uses  it  in  such  a  sense  as 
to  express  but  one  ground.  For  instance,  if  the  grounds  are 
numbered  in  the  statute,  and,  under  one  number  is  placed  the 
ground.  If  the  debtor  absconds  or  conceals  himself:  may  not 
the  affiant  swear  that  his  debtor  has  absconded  or  is  concealing 
himself?  It  is,  under  some  circumstances,  the  only  honest 
form  of  oath  that  the  plaintiff  can  take  with  regard  to  his 
debtor's  disappearance.  When  the  leading  idea  of  a  statute 
gi'ound  for  attachment  is  the  avoidance  of  process  by  absconding, 
the  means  of  avoidance  may  be  sworn  to  in  the  alternative;  so 
may  incidental  facts  respecting  other  leading  grounds. 2 

Inconsistent  grounds,  when  copulatively  joined,  are  liable  to 
the  same  objection  to  which  they  would  be  exposed  if  expressed 
alternately;  such  as  the  statements  that  the  debtor  has  disposed 
of  certain  property  to  defraud  creditors,  and  that  he  is  about 
to  dispose  of  the  same  property  for  that  purpose,  since  it  is 
not  possible  that  both  assertions  can  be  true.^ 

Nothing  in  the  affidavit  more  positively  requires  unequivo- 
cnl  statement  than  the  amount  of  the  indebtedness  sued  upon; 
yet  when  a  plaintiff  liad  sworn  that  the  defendants  "are  or  will 
be  justly  indebted,"  he  was  allowed  to  amend  by  striking  out 
the  words  "or  will  be."^     Without  such  emendation,  the  sworn 

'  Irvin    V.    Howard,    37     Ga.    18;  Brown  v.   Hawkins,    65  N.  C.   645; 

noward  v.  Oppeulieimer,  25  Md.350;  Johnson  v.  Hale,  3  Stewart  &  Porter, 

Dean     v.     Oppenheimer,    Id.     368 ;  331 ;     Cannon    v.    Logan,    5   Porter, 

Smith  V.  Foster,  8    Coldw.   (Tenn.)  (Ala.)  77;  Commercial   Bank  «.  Ull- 

139 ;  Goss  v.  Gowing,  5  Rich.  (S.  C.)  man,  10  S.  &  M.  411 ;  Boothe  v.  Estes, 

477.  Contra:    Haygood  v.  Hunter,  1  16  Ark.  104;  Bosbyshell  v.  Emanuel, 

McCord,  (S.  C.)  5ll;  Wood  v.  Wells,  12  S.  &  M.  63;  Wells  v.  St.  Dizier,  9 

2  Bush,  197;  Blum  ^.  Davis,  56  Te.x.  La.  Ann.  119;  Conrad  v.   McGee,  9 

423;  Hardy  t).  Trabue,  4  Bush,  644;  Yerger,  428;  Goss  «.  Gowing,  5  Rich- 

Elenk  «.  Schwalm,  19  Wis.  111.  ardson,  477;  Hopkins  v.  Nichols,  23 

2  Parsons  v.   Stockbridge,  43  Ind.  Tex.  206. 

121;  Stokes  v.  Potter,  10  R.  1.576;  ^  Hinds  v.  Fagebank,  9   Minn.  68; 

Van  Alstyne  v.   Erwine,  1  Kernan,  Kegel    v.   Schrenkheisen,   37    Mich. 

831;  McCraw    v.   Welch,  3   Col.   T.  174. 

284;  Klenk  v.  Schwalm,  19  Wis.  Ill ;  *  Tommey  v.  Gamble,  66  Ala.  469. 


THE    AFFIDAVIT AMENDMENTS.  101 

alleiii^ation  of  indebtedness  would  doul)tlcss  have  been  fatally 
defective  by  reason  of  the  alternation  which  coupled  a  good 
cause  of  action  with  one  totally  irrelevant.  One  cannot  be  sued 
because  he  will  become  indebted,  even  in  States  where  there  is 
no  necessity  of  averring  that  the  debt  is  due  in  order  to  conserve 
property  to  satisfy  it  eveutually;"  and  where  the  maturity  of  the 
debt  is  an  essential  averment,  no  valid  writ  can  be  issued  with- 
out such  allegation  in  the  affidavit.  To  aver  that  defendants 
"are  or  will  be  indebted,"  is  not  to  aver  that  they  now  are  so; 
and,  if  not  amended,    the  afUdavit  would  be  fatally    defective. 

Sec.  6.    The  AfiBdavit— Amendments. 

An  affidavit  may  follow  the  statute,  contain  all  that  is 
required,  and  be  sufficient  for  the  purposes  of  a  judgment  and 
the  maintaining  of  the  court's  jurisdiction,  and  yet  be  such  that 
it  ought  to  be  rejected.  Not  on  grounds  connected  especially 
with  the  attachment  laws,  but  on  the  general  ground  that  all 
papers  presented  to  the  court  should  be  of  a  proper  character. 
Such  an  affidavit,  though  containing  all  required  allegations, 
may  be  disrespectful,  frivoh)us,  unseemly;  it  may  be  ridicu- 
lously prolix,  tediously  circnmstantial,  or  otherwise  objectiona- 
ble, so  that  the  conrt  may  direct  its  modification;  and,  npon 
the  plaintiff's  refusal  to  change  it,  the  court,  in  the  exercise  of 
its  right  to  maintain  order  and  discipline,  may  decline  to  allow 
it  to  be  filed. 

The  snperiiuous  words  of  a  statute  may  be  safely  omitted  in 
making  tlie  affidavit.  Swearing  that  the  defendant  is  indebted 
is  equivalent  to  swearing  that  he  is  "justly  indebted,"  excejit 
where  the  statutes  prescribe  the  quoted  words.  All  that  it  is 
necessary  to  express  is  the  meaning  of  the  statnte.  Words  that 
would  seem  redundant  in  the  statute  may  be  of  evident  import- 
ance in  an  affidavit.  The  courts  will  judge  of  their  necesssity; 
and  it  is  better  to  retain  all  the  adjectives  and  adverbs  of  the 
statutory  requirement.     However,  they  are  often  non-essentials.  ^ 

1  Oliver  v.  Town  &  Watson,  28  417;  Creasser  ».  Youug,  31  Ohio  St. 
Wis.  328;  Mairet  u.  Marriner,  34  Wis.  57;  Drake  v.  Hager,  10  Iowa,  550; 
bS2;  Trowbridge  «.  Sickler,  42  Wis.      Liveugood  «.  Sliuw,  10  Mo.  272;  Ken- 


102  THE    INSTITUTION    OF    THE    SUIT. 

In  drawing  an  affidavit,  one  had  better  say  too  mncli  tlian  too 
little,  since  mere  surplusage,  when  not  inconsistent  with 
required  averments,  will  not  invalidate  them.'-  Mere  clerical 
mistakes,  such  as  the  omission  of  a  word  easily  supplied  in 
maldng  sense  of  the  context,  (such  ay  the  woi'd  "is,"  when 
omitted,  being  part  of  the  verb  "is  indebted,")  do  not  inval- 
idate the  affidavit.2  So,  tlie  substitution  of  one  word  for 
another  will  ]U)t  be  fatal  to  the  instrument,  if  the  sense  can 
be  readily  ascertained ;3  such  as  the  word  "goods"  for 
"property. "4 

There  is  no  necessity  for  such  nicety  of  expression  as  is 
required  in  old  forms  of  pleading.  If  defendants  are  averred, 
in  the  plural,  to  be  non-residents,  the  affiant  may  omit  to  add, 
"nor  is  either  of  them  a  resident,"  etc.^  If  the  statute 
requires  oath  that  the  claim  is  just,  equivalent  words  will 
answer; 6  so,  if  it  requires  the  plaintiff  to  swear  that  he 
believes  he  ought  to  recover,  he  may  swear  that  the  debt  is 
due.  "^ 

The  omission  of  averments  positively  required  by  the  stat- 
ute will  not  invalidate  the  affidavit,  if  the  requirement  of  such 
averments  is  unconstitutional.  ^ 

It  is  always  safe  to  omit  what  is  presumed  in  the  absence  of 
assertion,  such  as  the  fact  that  the  defendant  is  an  adult.  ^ 
Redundancy  is  not  a  fatal  defect.  One  part  of  the  instrument 
may  correct  another.  A  slight  error  in  the  affiant's  name,  in 
the  recital,  is  cured  by  his  signature,  lo  If  his  name  is  not 
stated  in  the   body  of  the   affidavit,    the  fault   is   not   serious. 

nedyi).  Morrison,  31  Tex.  207;  Hughes  Buchanan    v.    Sterling,  63  Ga.  227; 

V.   Martin,   1   Ark.   386;    Hughes  v.  Levy  ».  Elliott,  14  Nev.  43o. 

Stinnett,  9  Ark.  211.  *  Hafley  v.  Patterson,  47  Ala.   271. 

1  Curtis  V.  Moore,  3  Minn.  29;  Mc-  5  Franklin  v.  Claflin,  49  Md.  24. 
Mahon  v.  Boardman,  29  Tex.  170;  »  Ludlow  «.  Ramsey,  11  Wall.  581 ; 
Nelson  v.  Munch,  23  Minn.  229;  Gutman  ®.  Va.  L-on  Co.  5  W.  Va.  23. 
Pitkins  V.  Boyd,  4  Greene,  (la.)  255;  '  gjeet  v.  Williams,  21  Ohio  St.  82. 
Commercial  Bank  v.  Ullman,  18  Miss.  »  Ross  «.  Jenkins,  7  W.  Va.  284; 
411 ;  Lee  v.  Peters,  9  Miss.  503;  Tom-  Lynch  v.  Hoffman,  Id.  553,  578. 
mey  v.  Gamble,  66  Ala.  469.  *  Wentzler  ».  Ross,    59   How.    Pr. 

2  Buchanan  v.  Stirling,  63  Ga.  227.  397. 

3  Levy  V.  Elliott,  14  Nev.  435;  Mc-  '<>  Kahn?).  Herman,  3  Ga.  266;  Hun- 
Clauahan    v.   Brack,   46    Miss.   246;  ter  «.  Peaks,  74  Me.  363. 


THE    AFFIDAVIT AMENDMENTS.  103 

The  essential  matter  is  that  the  affidavit,  as  a  whole,  sliall  slvow 
that  it  was  made  by  the  party  who:^e  oath  it  purports  to  he,  so 
a."  1o  render  him  responsible  for  the  sworn  statement.  He 
<.'ertaiiily  cannot  become  entitled  to  the  benelit  of  the  affidavit 
if  it  sliows  anythino-  less. 

It  lias  been  ixeld  that  the  omission  of  the  name  of  one  of  tlie 
plaintiffs,  in  the  petition,  is  supplied  by  the  signature  to  the 
affidavit  and  bond,  when  the  plaintiffs  constitute  a  lirm  and  the 
eiii'uature  is  that  of  the  Urm  name. ^ 

The  omission  of  the  affiant's  siirnature  is  a  serious,  thonofh  not 
everywhere  held  to  be  a  fatal  defect.  ^  It  is  not  like  the  omis- 
sion to  state  the  grounds  of  the  action,  for  it  does  not  affect  tlie 
jurisdiction,  while  failure  to  aver  the  grounds  is  fatal  and.  irre- 
mediable because  it  does  affect  the  jurisdiction^  and  cannot  be 
remedied  after  the  issue  of  tlie  writ.*  The  g-eneral  rule  is  that 
whatever  is  statutorily  required  to  the  validity  of  the  attach- 
ment cannot  be  omitted  without  fatality.  The  venue  is  nec- 
essarj'  tb  prove  the  administration  of  the  oath,  and  it  should 
not  be  omitted; 5  but  it  has  been  held  that  the  omission  may 
be  supplied.* 

Slight  variance  between  the  petition  and  the  affidavit  may 
sometimes  be  explained  by  comparing  the  one  w^ith  the  other, 
when  the  discrepancy  does  not  amount  to  a  substantial  defect. 
Even  if  the  amount  of  the  claim  is  slightly  understated  in  the 
affidavit,  the  error  will   not  prove  fatal  when  the  writ  follows 

-  Barriere  a.  McBean,  12  La.  Ann.  8  Iowa,  318;  Hitsman  v.  Garrard,  IG 
493.     In   Forau  «.  Johnson,  58   Md.      N.  J.  L.  124. 

145,  it  was  held  that  the  mistake  of  ^  Zeregal  ■».  Benoist,  33   How.  Pr. 

inserting  "  James  &  Co."  instead  of  129.     See  many  citations  in  chapter 

the  firm  name,  "  James  Foran  &  Co.,"  on  jurisdiction. 

in   tlie  affidavit,  was  not  fatal,  since  *  Wright    v.   Smith,   66   Ala.   545 ; 

other  parts  of  the  instrument  render-  Johnson  v.  Hannah,  Id.  127.     But  see 

ed  the  meaning  certain.  Day  v.  Bennett,  18  N.  J.  L.  287 ;  Shad- 

-  In  ]\Iissouri,  the  error  is  fatal,  and  dock  v.  Marsh,  21  Id.  434,  and  Irwin 
the  court  has  no  jurisdiction  of  the  v.  Howard,  37  Ga.  18,  respecting  the 
attachment  suit  under  such  an  afhda-  amendahility  of  such  defect. 

vit,  and   a  deed  to  a  purchaser  at  a  ^  Rudolph  «.  McDonald,  6  Neb.  163. 

sale  under  a  judgment  in  such  case  See   McCartney  v.   Branch   Bank,  3 

is  void.     Hargadine  v.  Van  Horn,  72  Ala.  709. 

Mo.  370.     Contra:  Bates  v.  Robinson,  ^  Wiley  v.  Bennett,  9  Bax.  581. 


104  THE    INSTITUTION    OF    THE    SUIT. 

the  affidavit  and  not  the  jjetition  averring  a  greater  sum  to 
be  due.i 

When  an  affidavit  is  fatally  defective,  the  court  should  disre- 
gard it;  but,  in  case  the  court  should  ill-advisedly  issue  the 
writ,  tlie  best  course  for  the  plaintiff  to  pursue  is  to  abandon  it 
and  begin  his  proceedings  anew.  No  valid  judgment  can  be 
based  upon  such  false  foundation;  no  jurisdiction  can  be 
acquired. 

Defects  in  the  affidavit  are  of  two  kinds:  those  which  affect 
the  jurisdiction  and  those  of  a  minor  character.  The  former 
maj  be  urged  to  impeach  a  judgment  collaterally,  while  the 
latter  can  be  taken  advantage  of  in  the  case  only,  during  its 
progress  before  the  court  of  the  first  instance  or  on  appeal. 
Where  a  statute  requires  the  plaintiff  to  swear  to  theground  upon 
which  the  attachment  is  issued,  and  he  fails  so  to  swear,  the 
defect  is  jurisdictional;  but  where  the  requirement  is  "that 
certain  facts  shall  appear  by  affidavit  to  the  satisfaction  of  the 
court  or  judge"  before  an  order  for  publication  notice  to  a  non- 
resident debtor  can  be  issued,  "defects  in  such  affidavit  can 
only  be  taken  advantage  of  on  appeal,  or  by  some  otlier  direct 
proceeding,  and  cannot  be  urged  to  impeach  the  judgment 
collaterally." 2  That  is,  defects  not  jurisdictional;  for  though  the 
court  is  to  be  the  judge  of  what  is  proof  to  its  satisfaction,  it  can- 
not acquire  jurisdiction  by  accepting  an  affidavit  omitting  an 
essential  fact — for  instance,  the  debtor's  non-residence,  wlien 
that  is  the  ground;  or  his  absconding,  when  the  plaintiff  pro- 
ceeds upon  that;  nor  can  the  oath  to  the  indebtedness  be 
omitted. 

Where  amendment  of  the  affidavit  is  allowable,  the  plaintiff 
should  not  fail  to  amend  as  soon  as  he  discovers  his  mistake; 
and  this  should  be  before  the  issuance  of  the  writ.  Amend- 
ment is  not  universally  allowable  after  the  writ  has  been  issued 
— some  of  the  States  permitting  it  wdiile  others  do  not.  Even 
after  a  motion  to  quash  the  proceedings  on  the  ground  of  defect 
in  the  affidavit,  the  plaintiff  is  allowed  to  amend,  under  certain 

1  Stewart  v.  Heidenheimer,  55  Tex.  2  Pennoyer  v.  Neff,  95  U.  S.  721. 

644. 


THE    AFFIDAVIT AMENDMENTS.  105 

statute  provisions,!  and  time  is  given  liiin  fur  the  purpose. 
Material  allegations  cannot  be  sup])licd  upon  leave  gi-anted  to 
amend  as  to  form.  The  general  rule  is  that  defects  of  form 
are  amendahlc:  defects  of  substance  incurable.^ 

Should  an  attachment  be  dissolved  because  the  affidavit  is 
defective,  the  plaintiff  may  begin  anew,  as  a  matter  of  course; 
but  to  dissolve  the  attachment  and  grant  leave  to  amend  the 
alHdavit,  is  generall}'-  erroneous  (though  it  has  been  permitted,^^ 
and  the  error  may  avail  the  defendant  upon  appeal. 

If  the  affidavit  is  utterly  void  and  worthless,  the  defendant 
may  have  a  valid  judgment  ultimatel}"  rendered  against  him,  if 
he  litigates  without  objecting  to  it;  but  the  judgment  would  be 
as  ]f  in  an  ordinary  suit.* 

Grounds  stated  in  an  amended  afhdavit,  made  after  the  issu- 
ance of  the  writ,  must  not  be  those  first  existing  at  the  time  of 
the  amending  of  the  affidavit,  but  those  that  existed  at  the 
time  of  the  issuing  of  the  writ;  for,  if  the  court  acted  without 
jurisdiction,  for  want  of  essential  facts,  no  new  state  of  facts 
would  cure  the  error.  ^ 

Any  rights  acquired  by  third  persons,  between  the  time  of 
the  issuance  of  a  writ  upon  a  defective  afiidavit,  and  that  of 
the  amendment  of  the  affidavit,  would  be  unaffected  by 
the  amendment.  In  other  words,  though  such  tardy  state- 
ment of  the  true  grounds  of  procedure,  may  be ,  made 
available  to  the  plaintiff  against  the  defendant,  they  cannot 
reach  the  intervening  rights  and  interests  of  others. ^  Sureties 
on  a  bond  for  the  dissolution  of  an  attachment,  are   not  bound 

1  Fitzpatrick  v.  Flannagan,   106  U.  *  Hills  v.  Moore,  40  Mich.  210. 

S.  650;  Bunn  v.  Pritchard,   6   Iowa,  ^  jjnard  v.  Carter,  7   Heisk.   604; 

56;  Magoon «.  Gillett,  54  Iowa,  54;  Eobinson  v.    Burtou,    5   Kau.    2!)o; 

Atkins «.  Womeldorf,  53   Iowa,  153;  Hall    v.    Brazeltou,    46    Ala.    359; 

Rogers  v.    Cooper,    38    Ark.    40  >;  Crouch  v.   Crouch,     9     Iowa,     269; 

Struthers ».  McDowell,  5   Neb.  491.  Marx  v.   Abramson,     53    Tex.   264; 

2  Flexner  &   Lichter  v.  Dickerson,  Wadsworth  v.  Cbeeuy,  10  Iowa,  257; 
05  Ala.  129.     A  mistake  in  the  direc-  Sherrill  y.  Bench,  37  Ark.  560;   Deo- 
tion  of  an  affidavit,  being  not  one  of  ries  v.  Summit,  86  N.  C.  126. 
substance,  is  amendable:    Warren  v.  ®  Patterson  v.  Gulnare,   2  Dis.  505; 
Purtell,  63  Ga.  428.  Whitney  v.   Brunette,    15   Wis.  61; 

3  Nolen  V.  Royston,  30  Ark.  561 ;  Bell  v.  Hall,  2  Duvall,  288. 
Graves  v.  Cole,  1   G.  Greene,  405. 


106 


THE    INSTITUTION    OF    THE    SUIT. 


for  an  increase  of  the  plaintiff's  claim  made  by  amendment 
after  the  bonding; i  bnt  such  sureties  are  not  discharged  by  the 
plaintiff's  amendment  of  a  count  so  as  to  state  it  more  accur- 
ately. 3 

If  there  should  be  such  a  change  in  one  count  of  the  declar- 
ation as  to  relieve  the  sureties  from  liability  thereunder,  they 
would  yet  remain  bound  for  the  sums  claimed  under  the  other 
counts  not  amended  nor  affected. ^ 

A  motion  for  leave  to  amend  the  affidavit  comes  too  late  after 
a  motion  to  vacate  the  attacliment,  as  a  general  rule  of  prac- 
tice. *  The  practice  varies  in  different  States.  In  some,  amend- 
ments to  attachment  alHdavits  are  inhibited. ^  In  others  they 
are  allowed  with  varying  degrees  of  lil)erality.  ^ 

Landlords,  on  attachments  for  rent,  have  been  allowed  to 
amend  their  affidavits  after  the  issuance  of  the  writ.'  And 
even  after  a  motion  to  quash,  amendment  has  been  permitted 
that  the  officer  who  took  the  affidavit  micrht  insert  the   venue.  ^ 

o 

And  amendment  by  inserting  grounds  existing  when  the  affida- 
vit was  first  made,  have  even  been  permitted  after  appeal, ^ 
though  the  general  practice  is  otherwise,  i  <> 

The  rule  is  imperative  in  some  States,  and,  indeed,  it  is 
pretty  general,  that  fatal  defects  cannot  be  amended  after  the 

1  Prince  v.  Clark,   127  Mass.   590 ;      v.  Carter,  7  Heisk.  604. 

Hill.    «.    Hunnewell,    1    Pick.  193;  'Rogers   v.   Cooper,  33   Ark.  406. 

Willis  V.  Crocker,  Id.  204;  Wood  v.  In  Ala.  the  affidavit  in  an  attachment 

Denny,   7    Gray,    540;     Freeman  «.  for  rent  is  not  amendable  if  it  omits 

Creech,  112  Mass.  180.  to   allege  that    the    removal  of  the 

2  Cutter  V.  Richardson,  125  Mass.  crops,  (if  that  is  the  ground,)  was 
72.  without     the     landlord's     consent: 

3  Warrens.  Lord,  131  Mass.  560;  Shield  v.  Dothard,  59  Ala.  595. 
Knight  0.  Dorr,  19  Pick.  48;  Seeley  Amendment  has  been  allowed  the 
V.  Brown,  14  Pick.  177.  landlord  even  after  the  quashing  of 

*  Trow's  Printing  &  Bookbinding  his  attachment  because  of  the  omis- 

Co.  «.  Hart,  60  How.  (N.  Y.)  Pr.  190.  sion  of  a  necessary  averment.  Nolea 

6  Marx  V.  Abramson,  53  Tex.  264.  v.  Royston,  36  Ark.  561. 

eSherrill'y.   Bench,   37   Ark.  560;  »  [^ truth ers  v.   McDowell,  5    Neb. 

Tommey  v.    Gamble,    66    Ala.  174;  491. 

Halley  v.  Jackson,  48  Md.  254;  Allen  «  Sherrill  v.  Bench,  37  Ark.  560. 

«.  Brown,  4  Met.  (Ky.)   342;  Worth-  '» Adams  v.  Merritt,    10  111.  App. 

ingtou  «.  Carey,  1  Id.    470;  Staggers  275. 
V.  Washington,   56  Ala.  225 ;  Lillard 


THE    AFFIDAVIT AMENDIiIENTS.  107 

fltlaclnnent  lias  been  issued. ^  Even  wliere  amendments  are 
allowable,  tliey  will  not  be  permitted  to  the  injury  of  other 
attaching  creditors.  2 

Some  errors  or  omissions  in  the  affidavit  may  be  cured  by  the 
petition  filed  simultaneously  with  it,  or  nearly  at  the  same  time. 
If  the  full  names  of  persons  composing  a  partnership  are  set 
forth  in  the  petition  or  declaration,  that  sufficiently  explains  the 
affidavit  where  only  the  iirra  name  is  stated. ^ 

So  far  as  the  defendant  is  concerned,  if  he  is  present  in  court, 
and  a  motion  by  the  plaintiff  to  amend  an  attachment  is 
heard  contradictorily,  he  has  not  the  same  reason  to  complain 
of  an  amendment  as  a  competing  attaching  creditor  would 
have.4 

Many  defects  of  affidavit  are  cured  by  the  defendant's  gen- 
eral appearance,  s  but  not  the  omission  of  statutory  requisites. 
His  appearance  does  not  give  the  court  jurisdiction  of  the 
ancillary  action  where  there  is  such  omission. 

When  there  are  two  attachment  suits  against  a  defendant 
who  has  a  dormant  partner,  the  partnership  assets  in  the  name 
of  the  defendant  are  attachable.  One  of  the  attachers  would 
gain  no  advantage  over  the  other  by  amending  his  pleading  so 
as  to  include  the  dormant  partner,  nor  would  he  lose  his  pri- 
ority by  the  useless  and  harmless  amendment. ^  No  notice  of 
such  amendment  need  be  given  to  the  rival  attacher,  since  it 
does  not  affect  his  interest  or  the  question  of  priority.''' 

1  The  rule  well  expressed  in   Lill-  are  autliorized,  tliey  may  be  made 

ard  «.  Carter,  7  Heisk.   604;  Hall  v.  after  the  levy ;  even  after  the  defend- 

Brazelton,   46  Ala.   359.     But  there  ant  has   filed  a  plea  in  abatement  to 

are  exceptions  to  the   rule,  as  in  N.  the  grounds   upon    which    the  writ 

C. :  Brown  v.  Hawkins,  65  N.  C.  645.  was  issued   and  the  levy  made,  the 

^PaUerson  v.  Gulnare,   2   Disney,  plaintiff  may  amend   and  set  forth 

505.  new  grounds,  if  the  defendant  is  not 

3  Clayburg  v.  Ford,  3  111.  App.  542.  taken  by    surprise,  nor    prejudiced, 

See  Barber  v.  Smith,   41  Mich.  138,  nor  put  to  any  disadvantage  thereby, 

with  reference  to  names  and  nominal  s  Brayton  v.  Freese,  1  Ind.  121. 

mistakes.  *  Wright  v.  Herrick,     125     Mass. 

•"  lu  Fitzpatrick  v.  Flannegan,  106  154;  Lord  v.   Baldwin,  6  Pick.   348; 

U.    S.   650,   it   was  held   that  where  French  r.  Ciiase,  6  Greenl.  166. 

auj'^ndmeuts    to  defective   affidavits  '  Tucker  «.  White,  5  Allen,  322. 


108  THE    INSTITUTION    OF    THE    SUIT. 

The  property  of  a  debtor  is  not  attachable  because  of  the 
fraud  of  his  absconding  partner. ^ 

Sec.  7.    The  AflEidavit— as  Evidence. 

Whei-e  it  is  made  the  duty  of  the  court  to  issue  the  writ 
npon  the  sworn  statement  of  the  necessary. statutory  facts,  no 
further  preliminary  showing  can  be  exacted  of  the  plaintiff. 
The  writ  issues  as  a  matter  of  course.  Clerks  of  courts  issue 
it  for  the  courts,  where  authorized  by  law  to  do  so. 

But  where  the  requisite  facts  must  be  proved  to  the  satisfac- 
tion of  the  court,  the  affidavit  of  the  plaintiff  nuiy  not  be 
deemed  sufficient.  The  court  may  not  be  satisfied,  and  may 
require  further  proof.  What  the  court  must  have  proved, 
(though  by  evidence  ex  parte, ^  is  some  good  ground  for  the 
issuing  of  the  writ,  beyond  the  statement  of  indebtedness. 
Suppose  the  ground  laid  by  plaintiff  should  be  that  the  defend- 
ant is  about  to  abscond.  An  oath  that  the  plaintiff  believes 
that  the  defendant  is  about  to  abscond  would  be  no  establish- 
ment of  the  fact  that  the  defendant  is  about  to  abscond.  But, 
should  there  be  evidence  showing  circumstances  that  are  con- 
vincing to  the  judge,  he  may  be  satisfied  that  the  debtor  is  about 
to  runaway  and  may  grant  the  writ.  When  he  must  first  be 
satisfied,  not  only  of  the  absconding  or  intent  to  abscond,  but 
that  the  object  of  the  debtor  is  to  defraud  creditors,  such  addi- 
tional facts  must  be  reasonably  shown  by  affidavits  or  other 
ex  parte  evidence.  In  other  words,  statute  requirements  must 
be  met,  whatever  they  are.^ 

Where  no  traverse  of  the  facts  stated  in  the  affidavit  is 
allowed,  great  strictness  is  required  of  the  plaintiff  in  compli- 
.ance  with  the  law  governing  the  issue  of  an  attachment  upon 
his  oath  or  upon  other  evidence.  ^     Where  it  is  allowed,  more 

1  Bogart  «.  Dart,  25  Hun.  395:  But  Ex  parte  Roljinson,  21  Wend.  G72; 
see  Mills  v.  Brown,  2  Met.  (Ky.)  404;  In  lie  Faulkner,  4  Hill,  (N.  Y.)  598; 
Duncan  v.  Headley,  4  Bu.sh.  45.  Matter  of  Bliss,  7  Id.  IbT. 

2  Pierce  v.  Smith,  1  Minn.  82;  ^Formerly  this  was  the  case  in 
Keigher  ».  McCormick,  11  Minn.  Wis.,  and  the  reasons  apply  wherever 
^15;  Ex  parte  Yl-dynes,  ISWend.  611;  traverse  is  not  permitted.  Lorrain 
Miller  v.   Brinkerhoff,  4   Den.  118;  i;.  Higgins,  2  Pin.(Wis.)454;  Quarles 


THE    AFFIDAVIT AS    EVIDENCE.  109 

liberality  is  sliown  towards  the  plaintiff  in  granting  him  the 
writ,  since  there  is  a  summary  remedy,  by  rule  or  otherwise, 
in  case  the  attachment  should  turn  out  to  have  been  improvi- 
dently  granted.  ^ 

Wliere  traverse  is  allowable  it  should  be  before  final  judgment 
in  the  case,  if  at  all.^  It  should  -be  on  the  trial  or  before:  the 
summary  testing  of  the  plaintiff's  afltidavit  usually  is  beibre 
the  trial  of  the  nuiin  issue  or  issues.  Certainly  the  traverse 
should  never  be  after  iinal  judgment  in  a  cause,  when  the 
grounds  of  attachment  have  been  passed  upon;  and  for  two 
reasons:  first,  there  can  be  no  such  tardy  traverse  without 
statutory  authorization;  secondly,  there  is  no  reason,  upon  legal 
principle,  for  testing  the  issue  of  the  attachment  after  the 
hypothetical  attachment  lien  has  been  merged  in  a  judgment- 
lien. ' 

Though  the  plaintiff  may  have  legally  procured  his  writ  upon 
swearing  to  his  belief  of  a  fact,  the  question,  wdien  the  defend- 
ant comes  to  traverse  the  afKdavit,  is  not  what  the  plaintiff 
believed  wdien  he  made  oath,  but  whether  the  facts  were  really 
true  which  he  swore  that  he  believed  to  be  true.^  The  grounds 
for  attachment  laid  down  in  any  statute,  are  not  the  beliefs  of 
facts  but  facts  themselves;  and,  though  a  writ  may  issue  under 
many  of  the  statutes  upon  oath  to  belief,  it  can  never  be  con- 
summated without  proof  of  the  necessary  facts.  And  where- 
ever  the  debtor  may  legally  draw  the  grounds  of  attachment 
into  question  by  traverse,  in  some  form,  before  the  trial  of  the 
cause,  those  grounds  cannot  be  maintained  merely  by  proof  of 
the  plaintiff's  belief  in  their  existence. ^ 

It  is  to  avoid  delay  in  the  issuing  of  the  attachment  that  the 
practice  pretty  generally  allows  the  granting  of  the  writ  upon 

v.  Robinson,  Id.  97;  Merrill  v.  Law,  <  Davidson  v.  Hackett,  49'Wis.  186; 

1  Id.  221;  Morrison  «.  Ream,  Id.  244;  Cohen  >.  Burr,  6  Wis.  200;  Cooper  v. 

Slaughter  w.Bevans,  Id.  348.  Smith,  8  Wis.  358.     The  above  cases 

1  Davidsons.  Hackett,  49  Wis.  186.  were  decided  upon  construction  of 

2  Bassett  «.  Hughes,  48  Wis.  23.  Wisconsin  statutes. 

8  In  Wis.  held  irregular  to  try  the  ^  Davidson  v.  Hackett,  49  Wis.  186 ; 

action    -while    traverse    is   pending.  Noonan  v.   Pomeroy,    14  Wis.   5G8; 

Main  v.  Bell,  83  Wis.  544;  Davidson  Rice  v.  Jerenson,  54  Wis.  248. 
V.  HackeU,  45  AVis.  208. 


110  THE    J.XSTITUTION    OF    THE    SUIT. 

an  ex  parte  sliowing  of  mere  belief;  but  belief  is  not  a  ground 
for  sustaining  attachment,  under  any  statute. 

When,  on  a  motion  to  discharge  an  attachment,  affidavits  are 
admissible  in  support  of  the  motion,  they  are  also  admissible 
as  counter  evidence;  that  is,  counter  affidavits  may  be  offered 
against  the  motion.^ 

An  important  thing — an  absolutely  essential  thing  concerning 
the  affidavit  is  that  it  must  be  filed  and  made  part  of  the 
record  in  the  attachment  suit.  It  is  the  preliminary -stej)  to  the 
lien,  and  it  should  be  so  marked  or  endorsed  by  tlie  clerk  tliat 
it  may  be  identified  with  the  proceedings  to  follow.  The  filing 
should  take  place  without  delay,  that  the  plaintiff  may  have  tlie 
benefit  of  his  earlier  action  in  case  of  competing  creditors  com- 
ino-  after  him  to  obtain  attachments. 

Whether  the  affidavit  should  be  filed  on  the  day  of  the  issu- 
ance of  the  M'rit,  or  may  be  filed  before  without  affecting  the 
validity  of  the  proceeding  thereon,  depends  npon  statute  pro- 
visions. If  the  oath  required  wnth  respect  to  non-residence  is 
that  the  defendant  has  been  absent  for  three  months  immedi- 
ately preceeding  the  making  of  the  affidavit  or  the  making  of 
the  application  for  attachment,  the  affidavit  should  be  filed  on 
the  day  the  writ  is  issued  ;2  but  the  practice  is  pretty  general 
to  allow  the  time  to  go  unquestioned,  if  within  a  day  or  two 
before  the  issuing  of  the  writ,  where  the  reason  above  stated  is 
inapplicable.  3 

The  foregoing  remarks  upon  the  affidavit  are  not  wholly  appli- 
cable to  it  when  attachment  is  employed  in  suits  to  recover 
personal  property,  the  delivery  of  wdiich  to  the  plaintiff  has 
been  ordered,  if  such  disposition  has  been  made  of  it  by  tlie 
defendant  that  the  sheriff  cannot  execute  the  order  of  delivery. 
Sequestration  is  the  remedy  employed  in  some  other  states  to 
effect  the  same  purpose.     In  every  State  there  is  a  remedy  pro- 

1  Baeri;.  Otto,  34  Ohio  St.  11.  ■».  Clark,  7  Id.  310. 

2  In    exposition   of   the  Michigan  ^  weight  v.  Ragland,  18  Tex.  289. 
statute :  Drew  d.  Dequindre,  2  Doug.  Creagh  ».  Delane,  1  Nott  &  McCord, 
93 ;  Wilson  v.  Arnold,  5   Mich.   98 ;  189 ;  Wirker  v.  Scofield,  59  Ga.  210. 
Fessendea  v.  Hill,  6  Mich.  242;  Dorr 


THE    AFFIDAVIT— AS    EVIDENCE.  Ill 

vided,  tliongli  it  does  not  everywhere  take  tlie  name  of  attacli- 
ment,  nor  find  its  authorization  in  the  attachment  statutes. 

Tlie  term,  attachment,  is  used  in  several  lien  laws;  in  those 
authorizing  procedure  in  vindication  of  builders'  and  mechanics' 
liens,  etc.;  in  statutes  authorizing  seizures  by  landlords  for  rent; 
but  in  all  of  these,  attachments  are  in  vindication  of  speciiic 
liens,  and  the  suits  are  directed  against  speciiic  property  and 
are  governed  by  principles  applicable  to  them,  though  so  differ- 
ent from  those  governing  ordinary  attachments  that  the  suits 
must  be  treated  as  exceptional  with  respect  to  the  affidavit. 

In  suits  upon  specific  liens,  it  is  not  required  that  the  plain- 
tiffs should  show  that  the  defendants  are  non-residents,  or 
absconders  or  concealers  of  property,  or  that  ordinary  process 
would  prove  unavailing.  Such  suits,  though  called  attachment 
proceedings,  are  like  those  instituted  to  enforce  mortgage  liens, 
in  which  the  essential  allegations  of  the  plaintiff  are  that  the 
debt  is  owing  and  that  it  is  secured  by  mortgage — not  that  the 
defendant  is  absent,  absconded  or  non-resident.  Such  attach- 
ment suits  are,  in  this  respect,  directly  the  opposite  of  those 
usually  so  designr.ted  and  may  therefore  well  be  styled  excep- 
tional. In  the  affidavit  required,  in  some  States,  the  fact  that 
.the  debt  is  not  secured  by  mortgage  or  any  specific  lien  must 
be  averred,  in  crdinarv  attachment  suits,  while  in  the  exceptional 
ones  now  under  consideration,  the  existence  of  the  lien  is 
essential.  • 

Another  marked  difference  is  that  in  the  ordinary  attachment 
suit,  there  is  no  description  of  the  property  to  be  attached 
required  in  the  affidavit;  and,  indeed,  none  could  therein 
usually  be  made,  since  the  plaintiff  does  not  then  know  what 
property  of  the  defendant  the  sheriff  will  find;  but,  in  attach- 
ments to  enforce  pre-existing  liens,  description  is  absolutely 
necessary. 

In  a  suit  of  the  latter  class,  the  affidavit  and  the  seiznre  do 
not  create  a  lien.  The  rank  of  the  attaching  creditor  does  not, 
in  this  case,  depend  upon  his  being  the  first  attacher  but 
the  right  which  he  has  before  suit  by  reason  of  his  already 
perfected  lien.     In  a  contest  with  an  attaching  creditor  who 


112  THE    INSTITUTION    OF    THE    SUIT. 

seeks,  by  attacliing,  to  create  a  lien,  he  is  like  a  mortgagee 
whose  morti^nge  was  recorded  before  the  property  on  wliieh  it 
rests  was  attached  by  an  ordinary  creditor.  If  several  creditors, 
each  proceeding  against  the  same  property,  each  in  vindication 
of  his  pre-existing  lien,  should  have  a  contest  for  priority,  the 
dates  of  the  several  attachments  would  have  nothing  to  do  with 
the  question;  for  priority  would  be  decided  in  accordance  with 
the  dates  of  the  recording  of  the  respective  liens. 

These  and  other  differences  between  such  exceptional  attach- 
ment proceedings  and  the  ordinary  ones,  if  'borne  in  mind  by 
the  reader,  will  enable  him  to  reconcile  many  decisions  which 
would  otherwise  apj)ear  to  be  at  variance  with  each  other.  It 
is  unfortunate  that  both  classes  of  proceedings  should  bear  the 
Bame  name;  but,  keeping  the  obvious  distinction  in  view,  there 
need  be  no  difficulty  in  applying  to  either  the  true  principles 
which  govern  it. 

Sec.  8.    The  Attachment  Bond— in  general. 

The  remedy  by  attachment  being  extraordinary,  contrary  to 
common  law  procedure,  harsh  and  stringent  in  its  nature,  would 
be  manifestly  unjust  to  the  debtor  were  he  not  protected  when  it  is 
wrongfully  employed.  Were  the  writ  issued  upon  the  plaintiff's 
affidavit  alone,  upon  his  ex  jparte  statements  of  the  existence 
and  character  of  the  debt  and  of  the  grounds  upon  which  the 
statute  authorizes  the  extraordinary  process  to  be  issued;  were 
his  allegation  that  ordinary  process  would  be  inadequate  because 
the  debtor  is  removing,  has  removed  or  is  about  to  remove  him- 
self or  his  property  beyond  the  jurisdiction  to  defraud  creditors, 
sufficient  for  the  preliminary  seizure,  before  judgment,  of  the 
alleged  debtor's  property;  and  were  a  wronged  defendant  with- 
out protection,  great  injustice  would  be  done  in  many  cases, 
and  this  statutory  remedy  could  not  be  successfully  defended, 
lie  is  not,  however,  entirely  without  protection,  aside  from  the 
bond.  He  has  his  action  for  damages  caused  by  an  abuse  oi 
the  process,  against  the  attaching  plaintiff,  though  he  have  no 
bond  to  sue  upon.     His  action  for  malicious  attachment  is  not 


THE     BOND IN    UENEEAL.  113 

dependent  upon  a  bond.  The  requirement  of  an  attachment 
1)011(1  is  not  universal:  sonie  of  the  States  authorize  the  issue 
of  the  writ  without  it. 

It  is  to  relieve  the  attachment  remedy  of  its  possible  injus- 
tice that  a  bond  is  required  of  the  creditor  for  the  eventual 
protection  of  the  debtor,  in  nearly  all  of  the  States.  The  statu- 
tory redress  by  suit  on  the  bond  is  convenient  and  commendable. 
The  obligation  is  thus  made  a  matter  of  written  contract,  leav- 
ing the  obligee  nothing  to  prove  but  its  breach  and  the  amount 
of  the  damage,'  in  case  of  suit.  It  ordinarily  obviates  the 
necessity  of  sueing  at  common  law,  as  the  bond  is  usually  suffi- 
cient to  cover  all  actual  damages. 

The  injured  party,  whether  secured  by  an  attachment  bond  or 
not;  whether  awarded  any  statutory  redress  or  not,  is  still 
entitled,  to  have  his  wrongs  righted  in  some  way.  He  is 
entitled  to  have  full  redress,  whether  a  bond  has  been  given  or 
not;  whether,  if  given,  it  is  sufficient  to  cover  his  injury  or  not. 

In  case  of  malicious  prosecution,  the  damage  is  often  far  in 
excess  of  the  penal  sum  stipulated  in  the  bond.  The  suit  may 
be  for  a  small  sum;  the  statutory  bond  is  usually  fixed  at  double 
the  demand,  and,  in  several  of  the  States,  it  is  less;  but  the 
charge  of  absconding  or  fraudulently  removing  property  is  so 
serious  that  it  gives  rise  to  exemplary  damages  when  malici- 
ously made,  and  such  damages  may  be  many  times  greater  than 
the  sum  nominated  in  the  bond.  ISTot  only  in  making  the 
charge,  but  otherwise  the  proceeding  may  be  malicious.  Under 
such  circumstances,  the  injured  defendant  may  recover  on  gen- 
eral principles  to  the  extent  of  the  wrong,  either  under  the 
common^  or  the  civil  law.^ 

Such  general  remedy  would  not  always  prove  adequate.     An 

1  Cochrane    v.    Quackenbush,    29  Bruce    v.   Coleman,   1   Handy,   515; 

Minn.   376;     Kordliaus  v.   Peterson  Roach    v.   Brannon,     57   Miss.  490; 

Brothers,  54  Iowa,  08;  Sledge  v.  Mc-  iSmith  v.  Story,  4  Humph.  1G9. 

Laren,  29  Ga.  64:    Dall  «.  Cooper,  9  ^  Burne  v.  Gardner,  33  La.  Ann.  6; 

B.  J.  Lee,  574;  Sanders  v.  Hughes, 2  Teal  v.  Lyons,  30   La.  Ann.  Part  I, 

Brevard,   495;     Smith   v.    Eakiu,    2  1140;    Senecal  ®.  Smith,  9  Rob.  (La.) 

Sneed,  456 ;  Churchill  v.  Abraham,  22  418 ;  Grant  v.  Deuel,  Id.  17.    The  gen- 

111.455;    Donnell  v.  Jones,  13  Ala.  eral  rule  of  the  civil  law  respecting 

490 ;    Pettit  v.  IMercer,  8  B.  Mon.  51 ;  damages   in  general,  is  expressed  as 


114  THE    INSTITUTION    OF    THE    SUIT. 

irresponsible  plaintiff  might  ruin  a  defendant  in  business  or 
reputation;  and  if  tlie  latter  should  have  recourse  only  against 
the  wrong-doer,  he  might  be  unable  to  execute  any  judgment 
for  damages.  The  utility  of  the  attachment  bond  is  apparent 
in  such  a  case.  The  obligation  of  the  plaintiff  to  repair  any 
wrong  he  may  do  is  not  thus  enhanced,  but  the  defendant  has 
thus  the  advantage  of  the  security  given.  He  may  test  the 
ability  and  solvency  of  the  surety,  and  have  tlie  attachment  dis- 
solved if  the  bond  prove  insulllcient. 

The  requirement  of  a  bond  from  the  plaintiff,  with  security, 
as  a  prerequisite  to  his  obtaining  of  the  writ,  is  now  pretty  general 
under  the  prevalent  practice  of  attaching  to  create  and  enforce 
a  lien;  though  it  was  not  so  when  attaching  property  was  a  sub- 
stitute for  attaching  the  person  of  the  debtor  and  was  a  resort 
for  the  purpose  of  compelling  him  to  appear  and  enter  bail. 
The  difference  between  foreign  attachment  under  the  custom  of 
London,  and  domestic  attachment  wdierever  it  has  been  practiced 
as  a  distinct  remedy,  with  regard  to  the  bond,  has  not  wholly 
disappeared.  Where  the  two  are  still  distinguished,  the  plain- 
tiff is  not  now  required  to  give  bond  in  favor  of  a  non-appear- 
ing and  unnotified  non-resident  defendant  till  after  judgment 
nisi,  when  he  obligates  himself  with  surety  to  restore,  etc.,  in 
case  the  defendant  appear  within  a  year,  etc.  In  some  States, 
even  wdiere  foreign  and  domestic  attachment  are  not  regarded 
*as  two  distinct  proceedings,  no  bond  is  exacted  in  an  attach- 
ment suit  against  a  non-resident  or  a  foreign  corporation,  prior 
to  the  issuance  of  the  writ.^ 

follows:      "Every   act  whatever  of  stead   v.  Rivers,   Id.  234;   Nebraska 

man,  that  causes  damage  to  another,  Code,  §  200;    Simon  v.   Shelter,  25 

obliges  him  by  whose  fault  it  hap-  Kan.  155.     Kansas  General  Statutes, 

pened,  to  repair  it:"     Civil  Code  of  In  Ohio,  no  bond  is  required  in  an 

La.,  art.  2294.    Also,   Id.  arts.   2295,  attachment  suit  against   a  non-resi- 

2296,     2;j04.    C^ode    Napoleon,    Arls.  dent  or  foreign  corporation.     In  Del- 

1382-6;  Droit  Civil  de  Toullier,  liv.  aware,  where  the  two  kinds  of  attach- 

II  tit.  8  §  284;  liv.  Ill,  tit.  4;  Domat,  ment  are  distinguished,  the  old  theory 

(Strahan,)  Part  I,  Book  III,  tit.  5,  sec.  is  maintained  in  both,  and  a  bond  or 

2,  art.  14.:    Durantou,  tom.  18  §729;  undertaking    is    required     in    both, 

Partida  3.  tit.  32, 1.  10, 11 ;  Pothier  on  (when  the  defendant  does  not  appear 

Obligations,  §  §  121,  453.  and  terminate  the    attajhmeut  pro- 

»  Marsh  v.  Steele,  9  Neb.  96;  01m-  ceedings  by  giving  special  Ijail,)  but 


TUE    BOND IN    GENEKAL.  115 

The  practice  is  now  i^encral,  tlioui^li  not  universal,  to  require 
the  bond  preliminarily,  with  the  view  to  final  judgment  and 
privilege  upon  the  property  attached.  It  is,  when  so  required, 
an  essential  prerequisite  to  the  writ,  and  a  jurisdictional  matter. 
It  obviates  the  necessity  of  giving  pledges  to  restore,  since  it 
protects  the  absent  defendant  as  well  as  such  undertaking  could 
do,  and,  at  the  same  time,  protects  the  defendant  who  appears 
and  pleads.  It  is  because  appearance  does  not  now,  of  itself, 
dissolve  attachment,  that  the  bond  is  required  whether  he 
responds  to  summons  or  notification  or  remains  in  contumacy 
and  defeult.  The  exceptional  States,  where  the  bond  is  not 
required,  leave  the  injured  defendant  to  his  common-law  remedy. 
And  those  which  limit  the  requirement  to  special  grounds, 
leave  to  the  defendant  the  same  resort  in  cases  of  attachment 
instituted  on  other  grounds. 

If  the  defendant  is  confined  to  his  common  law  remedy,  he 
cannot  recover  damages  merely  because  a  plaintiff  has  sued 
him  and  has  failed  in  the  suit,  but  the  onus  is  on  the  complainant 
to  shovv  that  he  has  been  proceeded  against,  Avithout  probable 
cause  and  maliciously,  to  his  injury.  If  sued  upon  ordinary 
process  illegally  and  maliciously,  he  would  have  the  same 
remedy  at  common  law.  It  is  the  right  of  any  citizen,  and 
often  the  right  of  any  other  person,  to  sue  in  the  courts;  and 
the  suitor  is  not  necessarily  liable  in  damages  when  he  has 
made  a  mistake  as  to  his  rights  and  brought  an  action  upon 
which  he  cannot  recover.  Before  he  can  be  mulct  in  dann.ges 
for  bringing  the  suit,  it  must  be  show^n  that  he  brought  it 
maliciously  or  at  least  without  probable  and  apparently  reason- 
not  till  the  creditor  is  about  to  receive  eign  attachment  is  deemed  a  matter 
the  proceeds  of  the  attached  proper-  of  riffht.  A  bond  is  there  required 
ty  from  the  appointed  auditors,  when  in  domestic  attachments  where  fraud 
he  enters  into  recognizance,  with  is  an  element  of  tlij?  alleged  ground, 
surety,  to  repay  in  case  the  debtor  In  Alabama  it  has  been  held  that 
appear  within  a  year  and  a  day,  etc.  there  should  be  a  bond  to  secure  a 
Maryland  retained  this  practice  till  a  non-resident  defendant  who  does  not 
recent  date,  and  so  did  some  other  appear.  Erwin  t.  Ferguson,  5  Ala. 
States.  She  still  allows  attachment  158;  Walker  ®.  Bunk  of  Mobile,  6  Id. 
without  bond  when  the  debtor  is  a  452. 
non-resident.     In  Penns^dvania,  for- 


116  THE   INSTITUTION    OF    THE    SUIT. 

aljlo  cause.  The  presumption  of  good  motives  is  attributed  to 
him,  even  though  the  law  and  the  evidence  turn  out  to  be 
against  him;  and  therefore,  in  an  action  at  common  law  for 
daiiiages  in  a  suit  by  ordinary  process,  the  complainant  must 
clearly  show  wrong  motives  on  the  part  of  the  suitor  as  Avell  as 
injury  resultant.  So,  where  there  is  no  statutory  requirement 
of  an  attachment  bond;  where  the  law  gives  the  creditor  a 
right  to  the  extraordinary  process  upon  his  affidavit  of  a  debt  and 
grounds  such  as  the  law  recognizes  as  the  proper  basis  of  such 
action,  the  injured  defendant's  common  law  remedy  for  redress 
is  much  like  that  for  a  malicious  ordinary  suit. 

Sec.  9.    The  Attachment  Bond— Amount. 

The  amount  of  the  bond  is  fixed  by  statute.  'No  State  can 
reasonably  make  it  less  than  enough  to.  indemnify  the  defendant 
against  eventual  loss  as  actual  damages.  As  the  plaintiff  aims 
to  make  seizure  of  sufficient  property  to  sati>fy  his  claim  and  all 
the  costs,  he  ought  to  give  bond  for  a  sum  adequate  to  cover  both 
the  loss  and  expense  of  the  defendant  in  case  the  writ  of  .attach- 
ment should  be  unlawfully  obtained,  and  the  plaintiff  should 
fail  to  obtain  judgment.  In  many  instances,  a  bond  limited  to 
the  estimated  value  of  the  property  to  be  seized,  with  the  prob- 
able costs  added,  would  not  render  the  defendant  perfectly 
secure.  In  case  of  the  seizure  of  a  thing  both  imperishable 
and  unproductive,  a  bond  in  a  sum  equal  to  its  value  would  be 
more  than  sufficient.  But  there  must  be  some  rule  in  every 
State.  The  gage  is  found  in  the  amount  of  the  debt  sworn 
to  in  the  affidavit.  With  this  criterion,  the  amount  of  the 
bond  is  variously  fixed  in  different  States:  double  the  debt, 
one-half  above  the  debt,  etc.  If  the  claim  is  for  debt  and 
interest,  the  amount  claimed  is  the  gage,  and  the  interest 
must  be  included  in  fixing  the  sum  for  the  purposes  of  the 
bond;^    but    such    is   not    the    case    when    interest  is  merely 

1  McDaniel?).  Sappin2:ton,Harcl.94.  Ann.  687.     It  is  held  in  New  York 

Gallagher  ■«.  Cogswell,  11    Fla.  127;  that  a  deposit  cannot  be  substituted 

Brown  w.    Whiteford,   4   Rich.     327;  for   the  required  undenaking:    Bate 

Graiiara    v.  Burckhalter,  2  La.   Ann.  v.  McDowell,  48  N.  Y.   (Super.  Ct.) 

41.j;  Planter's  Bank  i;.  Byrne,  3  La.  219. 


THE    BOND AMOUNT.  117 

mentioned  but  not  made  part  of  the  debt  sworn  to  in  the  affida- 
vit. Where  there  is  discrepancy  between  the  affidavit  and  the 
petition  or  dechiration,  the  amount  sworn  to  in  the  affidavit 
should  be  the  standard  for  fixing  the  sum  in  tlie  bond.  ^  In 
forms  of  action  not  setting  forth  the  exact  sura  sued  for,  if  the 
affidavit  does  not  indicate  tlie  amount,  the  writ  is  the  gage  for 
fixing  the  amount  of  the  attachment  bond.^  Where  a  round 
sum  is  sued  for,  as  debt  and  damages,  it  is  understood  to  include 
interest,  and  the  bond  is  based  upon  it,  being  twice  that  sum 
where  doubling;  is  the  rule.^ 

Though  the  bond  is  good  if  large  enough  when  compared 
with  the  sum  sworn  to  in  the  affidavit,  while  a  larger  sum  may 
be  claimed  in  the  petition  or  declaration,  yet  the  overplus  in  the 
latter  would  not,  in  such  case,  be  secured  by  the  attachment 
lien.  But  should  the  bond  be  less  than  the  sum  sworn  in  the 
affidavit  requires,  the  iittachnient  could  not  be  maintained.  It 
would  not  oe  good  to  the  amount  stated,  and  bad  as  to  the  bal- 
ance, but  it  woukl  be  wholh'  bad,  and  the  proceedings  could  be 
set  aside  on  buch  gi'ound.* 

It  is  needless  to  sa}^  that  if  a  bond  is  greater  tlian  what  the 
law  requires,  no  harm  can  thus  result  to  the  defendant,  and  the 
instrument  would  not  therefore  be  invalid ;5  but  the  statute 
requirement  must  be  strictly  observed  up  to  the  fixed  amount. 
There  is  nothing  more  imperative  in  the  attachment  laws  gen- 
erally than  that  the  creditor  shall  give  bond  and  security 
in  the  sujn  which  the  legislator  has  decided  to  be  requisite  for 
the  indemniiication  of  the  defendant  in  such  damages  as  he 
may  suffer  by  reason  of  the  attachment.     Though   the  amount 

J  Pope®.  Hunter,  13  La. 306;  Jack-  Murphy,     8    Ind.    272;      Martin    v. 

son  «.  Warwick,   17   La.   436;  Law-  Thompson,  3  Bibb,  252;  Williams  v. 

rence  «.  Featherston,  10  Smedes  &  M.  Barrow,  3  La.  57 ;  Samuel  v.  Brite,  3 

345.  A.  K.  Marshall,  317 ;  Hamnill  v.  Phe- 

2  Callender  v.  Duncan,  2  Baily,  454;  nicie,  9  Iowa,  525. 

Young  V.  Grey,  Harper,  38 ;    Brown  *  Banning  v.  Reeves,  2  Tenn.   Ch. 

V.  Whiteford,  4  Rich.  327.  263;  Bourne  v.  Hocker,  11   B.   Mon- 

3  Id.  roe,  21 ;  Shockley  v.  Davis,  17   Ga. 
*  Fleitas  v.  Cockrem,  101  U.  S.  301 ;  175 ;  Fellows  v.  Miller,  8   Blackford, 

Hamble  v.  Owen,  20  Iowa,  70 ;  Yale  231 ;  Steamboat  Napoleon  v.  Etler,  6 
V.  Cole,  31  La.  Ann.  687 ;  Marnine  v.      Ark.  103. 


118  THE    INSTITUTION    OF    THE    SUIT. 

he  fixed  by  tlie  court,  it  will  not  suffice  unless  tlio  sum  is  as 
great  as  that  required  hy  statute.^ 

The  pleader  should  strictly  follow  the  statute,  in  stating  the 
conditions  of  the  bond,  preferring  any  prescribed  form  therein 
to  directions  in  other  parts  of  the  statute,  where  there  is  incon- 
o-ruity.2  He  should  insert  what  is  necessary  to  identify  the 
bond  with  the  suit.^  Anything  that  would  surely  mislead  the 
defendant  with  regard  to  the  suit,  the  court,  tlie  return  day,  e^c, 
would  render  the  bond  vicious.  Slight  mistakes  which  cannot 
thus  mislead  would  not  render  the  bond  fatally  defective,  with 
respect  to  the  particulars  just  specified  or  any  others.  If  there 
is  strict  compliance  with  the  statute  in  essentials,  and  a  sub- 
stantial compliance  in  non-essentials,  the  attachment  ought  not 
to  be  quashed.  Even  if  the  mistake  be  somewhat  important, 
there  should  be  liberality  in  the  allowance  of  amendment,  where 
the  court  has  discretion. 

The  statute  requirement,  as  to  the  amount  of  the  bond,  must 
be  strictly  observed;  and  the  conditions  required  must  be  ex- 
plicitly  set  forth  in  the  bond.* 

See.  10.    The  Attachment  Bond— The  Obligors. 

The  bond  is  made  and  signed  by  the  attaching  creditor  as  the 
principal  obligor.     A  disinterested  person  could   not  become 

iFleitas  v.  Cockrem,  101  U.  S.  395;  Briggs  i).  Smith,  13  Tex.  269; 
301;  Graham  v.  Burckhalter,  2  La.  Laurence  «.  Yeatman,  3  111.  15;  Bon- 
Ann.  415.  In  Louisiana,  the  bond  ner  «.  Brown,  10  La.  Ann.  334;  Bene- 
must  be  one  half  above  the  amount  diet  v.  Bray,  2  Cal.  25 ;  Planters  and 
claimed:  above  cases,  and  Williams  3Ierchants'  Bank  v.  Andrews,  b  Por- 
V.  Barrow,  3  La.  57 ;  Jackson  v.  War-  ter,  404.  See  Houston  v.  Belcher,  12 
wick,  17  La.  436.  Smedes  &  M.  514;  Lowry  v.  Stowe, 

2  McCook   V.  Willis,   28   La.   Ann.  7  Porter,  483. 
448;  United  States  «.  Brown,  Gilpin,  *  Benedict  v.   Bray,    2    Cal.    251; 

1.55;  Love  «.   Fairfield,   10   111.  303;  Starr  «.  Lyon,  5   Ct.  538;  Thompson 

Mclntyre  v.  White,   5    How.  (Miss.)  v.  Arthur,  Dudley,   253;    Cousins  v. 

298 ;  Lucky  ■».  IVyiler,  8  Yerger,  90 ;  Brashier,    1    Blackf.    85 ;     Ford     v. 

Amos  V.  Allnutt,  2  Smedes  &  M.  215;  Woodward,  10  Miss.  260;    Stevenson 

Proskey  i;.  West,  8   Id.   711;  U.  S.  d.  v.  Robbins,    5    Mo.    18;    Homan  v. 

Morgan,  3  Wash.  C.  C  10;  U.  S.  «.  Brinkerhoff,   1   Den.    184;    Davis  v. 

Gordon,  7  Cr.  287.  Marshall,  14  Barb.  96;  Bank  of  Ala- 

» .Taycox  v.  Chapman,  10  Ben.  517;  bama  v.  Fitzpatrick,  4  Humph.    i]ll ; 

Scrimpf  v.   McArdle,    13  Tex.   368;  Briggs  ®.  Smith,  13  Tex.   269;  Jones 

Morgan  v.  Morgan,  4  Gill  &  Johns.  v.  Anderson,  7  Leigh,  308. 


THE    BOND THE    OBLIGORS.  119 

the  principal  witliin  the  intendment  of  the  law;  certainly  the 
courts  cannot  issue  attachments  unless  the  creditor  himself  is 
the  obligor,  where    the   statute  requires  him  to  become  sncli.^ 

It  is  not  imperative  that  the  plaintiff,  or  the  person  interested, 
should  actually  sign  the  bond,  but  it  may  be  done  by  an  agent 
duly  anthorized,  when  the  principal  cannot  do  so,  for  any  good 
reason,  as  in  the  case  of  the  making  of  tlie  affidavit.  In  such 
case,  the  agent  signs  for  the  plaintiff,  as  his  attorney  for  doing 
so;  the  act  is  deemed  that  of  the  plaintiff;  the  latter  is  fully 
bound  to  the  defendant,  and  the  requirement  of  the  law  is 
obeyed- 2  If  the  suit  is  by  a  firm,  one  of  the.  firm  may  sign 
the  partnership  name;  and  should  he  sign  only  his  own  but 
appear  as  the  representative  of  the  firm  and  have  authority  to 
obligate  the  partnership,  it  would  be  sufficient.  ^  It  is  not  a 
compliance  M-ith  the  law,  if  a  member  of  a  plaintiff  firm  obli- 
gates only  himself;*  for,  though  such  bond  would  hold  good 
against  him,  the  attachment  ought  to  be  dissolved  upon  appli- 
cation for  the  reason  that  the  interested  firm  is  not  bound,  and 
the  defendant  is  not  secured  as  he  is  entitled  to  be. 

I^ot  only  a  member  of  a  firm   representing  himself  and  his 

"  ID 

partners,  but  any  agent  representing  his  principal  should  sign 
in  the  capacity  in  which  he  appears.  It  must  be  such  a  sign- 
ing as  to  bind  the  principal;  not  such  as  merely  to  hold  the 
person  making  the  signatnre.  Such  obligation  satisfies  the  law, 
especially  where  it  is  provided  that  the  signing  may  be  done 
by  an  agent  or  attorney  of  the  plaintiff.  ^ 

The  true  rule  is  that  the  bond  must  be  signed  and  execnted 
so  as  to  bind  the  plaintiff  or  the  party  interested  in  sueing  out 

1  Jones  «.  Anderson,  7  Leigh,  (Va.)  *  Stewart  v.  Katz,  30  Md.  334; 
308;  Ford  v.  Hurd,  12  Miss.  083;  Gable  t\  Brooks,  48  Md.  108;  Jones 
Myers  v.  Lewis,  1  McMullen,   (S.  C.)      v.  Anderson,  7  Leigh,  308. 

54;   Mantz  v.  Hendley,  2  Hening  &  s  -pwst  v.  Cook,  8  Miss.  357;   Page 

Munford,  308.  v.  Ford,  10  Miss.  266 ;  Ford  v.  Hurd, 

2  Frost  «.  Cook,  8  Miss.  357;  Tay-  .  12  Miss.  683;  Dillon  v.  Watkins,  2 
lor  V.  Richards,  9  Ark.  378.  Speers,  44') ;  McCandish  v.  Hopkins, 

3  Churchell  v.  Fulliam,  8  Iowa,  45;  6  Call,  208;  Conkliu  v.  Goldsmith,  5 
Wallis  V.  Wallace,  6  How.  (7  Miss.)  Fla.  280;  Simpson  v.  Knight,  12  Fla. 
254;  Cunningham  v.  Lamar,  51  Ga.  144;  Martini).  Dortch,  1  Stew.  479; 
574;  Kyle  v.  Connelly,  3   Leigh,  719.  Stewart  v.  Katz,  30  Md.  334. 


120  THE    INSTITUTION    OF    THE    SUIT. 

the  attachment;  and  whether  the  agent's  signature  is  sufficient 
for  that  purpose  may  appear,  so  as  to  give  validity  to  the  bond, 
without  his  formal  statement  of  his  real  capacit}^ — provided 
that  such  capacity  is,  in  some  way,  ajiparent  beyond  contro- 
versy so  as  to  enable  the  defendant  to  sue  the  plaintifi  upon  the 
bond,  should  suit  become  necessary.  Should  the  bond  show 
that  the  plaintiff  is  bound,  it  would  be  good,  though  there 
might  be  nothing  in  the  signature  to  show  that  the  agent  signed 
in  any  other  than  his  personal  capacity.^ 

The  requisite  showing  in  the  bond  or  the  signature  thereto  is 
not  such  as  to  make  the  production  of  a  power  of  attorney 
necessary.  Doubtless,  in  the  absence  of  the  plaintiff,  the  court 
might  require  the  professed  agent  to  produce  his  authority  be- 
fore granting  the  writ,  but  it  is  not  usual  to  do  so.  The  fact 
of  the  suit  being  prosecuted  by  the  plaintiff  upon  the  bond 
and  affidavit  filed,  shows  that  he  has  assented  to  them  and 
is  acting  as  if  bound  by  them.  This  creates  a  presumption  in 
favor  of  their  authorization  when  questioned,  so  far  as  the 
relation  of  the  plaintifi'  to  the  ostensible  agent  is  concerned.  2 
But  the  court  ought  to  require  that  the  bond  be  complete  in 
itself,  before  issuing  the  writ;  and  the  defendant,  in  case  he 
should  have  to  sue  upon  the  bond,  ought  not  be  subjected  to 
the  necessity  of  producing  other  evidence  that  the  plaintiff*  is 
bound  by  it. 

Where  the  bond  may  be  signed  for  the  plaintiff  by  his  attor- 
ney, it  is  not  uncommon  that  his  attorney  at  law  represents  him, 

1  Wal bridge  t.  Spalding,  1  Doug.  ■».  Sutt,  6  La.  Ann.  709;  "Wood  v. 
(Micli.)  451 ;  Page  v.  Ford,  10  Miss.  Squiers,  28  Mo.  528 ;  Mason  v.  Stew- 
266;  Work  v.  Titus,  12  Fla.  628;  art,  6  La.  Ann.  736;  Goddard  «.  Cun- 
Clanton  ».  Laird,  20  Miss.  568;  Mur-  ningliam,  6  Iowa,  400;  Brooks  «. 
ray  u  Cone,  8  Port.  250;  Frost  «.  Poirier,  10  La.  Ann.  512;  Spear  ■». 
Cook,  7  How.  8  (Miss.)  357;  Grand  King,  14  Miss.  (6  Smedes  &  M.)  276; 
Gulf  R.  R.  «fe  B.  C.  Co.  ■».  Conger,  9  Narraguagus  v.  Wentworth,  36  Me. 
Srnedes  &  M.  505.  339 ;   Alford    v.   Johnson,    9   Porter, 

2  Jacobs  ».  Hogan,  85  N.  Y.  243;  320.  (See  Williams  ».  Reed,  3  Mason, 
Jackson  c.  Stanley,  2  Ala.  326;  Pierce  405;)  Messner  ■?;.  Hutchins,  17  Tex. 
«.  Strickland,  2  Story,  292;  Lindner  597;  Wright  «.  Smith,  19  Tex.  297; 
».  Aaron,  5  How.  (Miss.)  581;  Taylor  Messner  v.  Lewis,  20  Tex.  221. 


THE    BOND THE    OBLIGOKS.  121 

signing  only  in  his  professional  capacity.^  But  one  who  is 
licensed  as  attorney  to  represent,  in  a  professional  way,  all  who 
employ  him,  is  not  thus  authorized  to  bind  his  client  beyond 
the  scope  of  his  employment.  Though  engaged  to  institute 
and  prosecute  an  attachment  suit,  he  is  not  therefore  em- 
powered to  bind  his  client  by  si-gning  an  attachment  bond  for 
him.  It  cannot  truly  be  said  that  the  execution  by  him  of 
such  a  bond  is  an  incident  of  his  employment.  Though  it  lias 
been  judicially  said  that  the  signing  of  the  bond  by  an  attorney 
at  law  is  an  act  of  administration — that  it  is  indisj)ensible  to 
secure  the  rights  of  the  client — that  the  attorney  at  law  of  the 
plaintiff  is  his  mandatory  for  the  purpose  of  collecting  tlie 
debt  by  process  of  law— that  the  signing  of  the  bond  is  a  neces- 
sary incident  to  the  collection — and  that  it  is  embraced  in  the 
general  power  given  by  the  client  to  his  attorney  at  law",^  yet  it 
must  be  denied  that  a  bond  thus  executed  would  bind  the  client, 
should  he  not  ratify  it  by  proceeding  with  the  litigation  there- 
under. The  court  might  accept  such  a  bond  on  the  presump- 
tion that  a  licensed  attorney  acted  within  his  authority  wdien 
signing  ostensibly  for  his  principal;  but  in  case  of  a  suit  upon 
the  bond,  the  ch'ent  could  not  be  held  if  there  should  be  no 
other  evidence  of  authority  on  the  part  of  the  attorney  than  his 
employment  as  the  lawyer  of  a  client  who  had  repudiated  his  act 
of  signing  before  any  proceeding  thereon.  Certainly  the  law- 
yer should  have  power  conferred,  beyond  that  given  by  his 
license  and  his  engagement  as  attorney  in  the  cause,  though 
the  power  need  not  be  evidenced  by  any  written  instrument. 
If  ruled  into  coui't  to  show  the  authority  under  which  he  acted 
in  signing  the  bond  for  his  client,  the  attorney  at  law  could  not 
make  an  adequate  showing  by  merely  producing  his  license  and 
proving  his  engagement  as  the  plaintiff's  lawyer  in  the  case. 
Though  the  attachment  proceedings  might  not  be  quashed  for 
want  of  the  proper  showing  upon  such  a  rule,  after  some  pro- 
gress in  the  suit  had  been   made   under  a  bond  thus  executed, ^ 

1  Foulks  V.  Falls,  91  Ind.  315,  321 ;      496 ;  Schoregge  v.  Gordon,  29  Minn. 
Trowbridge  v.  Weir,  6  La.  Ann.  706.      367. 

^AVetmore  v.  Daffln,  5   La.   Ann.  3  j^jaudel    v.    Peet,   18    Ark.    236; 


123  THE    INSTITUTION    OF    THE    SUIT. 

it  is  because  the  plaintiff,  by  thus  going  on,  is  nnclerstood  to 
have  assented  to  the  attorney's  action  and  to  have  become 
bound  thereby.  Even  were  they  quaslied  on  this  ground  after 
some  progress,  at  the  instance  of  tlie  defendant,  the  plaintiff 
would  be  held  obligated  by  such  a  bond  on  account  of  his  acqui- 
escence during  such  progress. ^  And  this  reasoning  applies  to 
bonds  executed  by  other  attorneys  than  those  at  law,  who  sign 
without  being  previously  authorized  by  their  assumed  princi- 
pals, in  some  way,  but  whose  action  is  subsequently  ratified 
expressly  or  impliedly. 

The  surety  must  sign  with  the  principal,  obligating  himself 
to  pay  if  the  plaintiff  does  not.  He  must  be  a  resident  of  the 
State,  in  solvent  circumstances,  able  to  meet  his  obligation. 

He  should  sign  personally.  If  he  sign  through  an 
agent,  the  authority  of  the  latter  should  be  made  to  appear; 
for  the  surety,  not  being  a  party  to  the  suit,  could  not  be  said 
to  acquiesce  in  the  action  of  the  agent  by  reason  of  the  pro- 
gress of  the  cause — he  not  being  presumed  to  have  known  of 
such  progress  or  even  of  the  execution  of  the  bond. 

If  he  who  signs  as  surety  the  name  of  his  firm  does  not  pro- 
duce authority  so  to  do,  he  does  not  bind  the  firm  unless  the 
articles  of  partnership  go  beyond  the  usual  contract  and 
empower  the  members  of  it,  (or  at  least  the  member  so  sign- 
ing,) to  obligate  the  firm  in  this  way.  He  would  bind  himself 
but  not  the  partnership  to  which  he  belongs.  If  he  is  com- 
petent to  sign,  so  far  as  residence,  solvency,  pecuniary  ability, 
proper  age,  etc.,  are  concerned,  the  bond  would  be  good;  and  the 
defendant  could  not  successfully  attack  it  on  the  ground  that 
the  surety  had  not  signed  his  own  name  but  that  of  his  firm. 
The  firm  style  included  his  own  name.  In  seeking  to  bind  all, 
he  bound  himself.  And,  should  the  defendant  not  complain, 
the  surety  himself  cannot,  for  he  must  stand  by  his  own  act.  2 
Between  himself  and  his  partners,  however,  all  the  members 
would  be  bound  for  their  equal  portion  should  he  have  to  pay. 

Dove  ■«.  Martin,  23  Miss.  588;  Banls  'Messner^j.  Lewis,    20  Tex.   221; 

of  Augusta  V.  Conrey,  28  Miss.   667;       Peiser  «.  Cushman,  13  Tex.  390. 
Peiser  v.  Cusbmau,  13  Tex.  390.  ="  Tiiatclier  t).  Goff,  13  La.  3G0. 


THE    BOND — THE    OBLIGOES.  123 

if  lie  signed  with  tlieir  knowledge  or  subsequent  acquies- 
cence. 

It  is  not  uncommon  for  principals  and  sureties  to  sign  firm 
designations  to  bonds  instead  of  the  names  of  the  members  of 
the  partnership,  and  it  is  usually  allowed  without  objection 
from  the  courts  or  the  defendants;!  but,  as  remarked,  this  binds 
only  the  person  signing,  unless  the  firm  has  given  him  authority. 

Solvency,  residence  within  the  State,  lawful  age,  etc.,  are 
presumed  till  the  contrary  is  made  to  appear.  Such  facts  need 
not  be  stated  in  the  bond,  though  the  statute  may  expressly 
require  such  qualifications  in  a  surety.  If  the  statute  requires 
sureties,  more  than  one  should  be  given  provided  no  other  con- 
struction of  the  meaning  is  permissible;  but,  the  object  of  the 
legislature  being  to  secure  the  defendant  and  ultimately  indem- 
nify him  against  loss,^  one  good  surety  will  be  sufficient,  not- 
withstanding the  words  of  the  statute,  in  those  States  where 
singular  and  plural  numbers  are  legally  interchangeable  for  the 
purpose  of  statute  construction. '  And  where  the  courts  are 
not  expressly  accorded  this  latitude  of  construction,  one  surety 
may  suffice  unless  it  is  clearly  the  meaning  of  the  statute  that 
there  should  be  more  for  tlie  better  protection  of  the  defendant. 

If  there  is  but  one  name  signed  to  an  attachment  bond,  it 
will  be  deemed  that  of  the  surety  when  the  body  of  the  bond 
and  the  pleadings  of  the  case  disclose  another  as  that  of  the 
plaintiff;  and  the  bond  will  not  be  fatally  defective  because  the 
attaching  plaintiff  has  not  signed  it,  since  he  is  under  obliga- 
tion as  principal  whether  he  signs  or  not.* 

The  omission  of  the  surety's  name,  in  the  body  of  the  bond, 
is  not  fatal;  his  signature  would  bind  him  notwithstanding  such 
omission.  5 

When  the  surety  binds  himself  to  "pay  all  costs  that  may 
be   adjudged  to  the  defendant  and  all  damages  which   he  may 

1  Raymond  v.  Green,  12  Neb.  215 ;      Bryant  v.   Hendee,  40  Mich.  543. 
Dauforth    v.     Carter,   1    Iowa,   540;  *  Bait.  &  O.  R.  R.  Co.  v.  Taylor,  81 
Churchill  v.  Fulliain,  8  Iowa,  45.   See      Ind.  24. 

Bennett  v.  Zahriski,  2  N.  Mex.  17(5.  ^  McLain  v.  Simington,  37  Ohio  St. 

2  Adams  «.  Jacoway,  34  Ark.  542.  484,  explaining  Stephens  v.  Allmen, 
'Elliot  V.  Stevens,  10   Iowa,  418;      19  Id.  485. 


12-i  THE    INSTITUTION    OF    THE    SUIT. 

sustain  by  reason  of  the  attaclnnoiit"  he  may  he  held  for  the 
defendant's  disbursements  duly  allowed. ^  lie  cannot  be  held 
for  a  greater  sum  than  that  specified  in  the  bond;  and,  if  his 
principal  has  paid  part  of  that,  the  surety  remains  liable  oidy 
for  the  balance! 2  And  the  whole  amount  can  be  collected  only 
in  case  of  total  loss.  The  measure  of  damage  is  the  pecuniary 
loss  caused  the  defendant  by  deprival  of  the  use  of  his  property, 
by  any  injury  done  to  it,  by  any  waste,  etc.,  and  also  by  the 
expense  of  defending  it.^  Sureties  have  been  held  answerable 
for  the  costs  and  disbursements  of  the  obligee,  not  only  in  his 
defense  against  a  wrongful  attachment,  but  also  in  his  prosecu- 
tion of  an  action  on  the  bond  for  damages.* 

The  surety,  being  concerned  in  the  result  of  the  suit,  could 
not  be  a  witness  for  the  plaintiff  where  interest  renders  wit- 
nesses incompetent  to  testify;  and,  where  it  does  not,  the  fact 
of  being  pecuniariW  liable  in  case  the  attachment  should  injure 
the  defendant  would  affect  the  credibility  of  the  surety  as  a 
witness.  In  such  case,  may  the  plaintiff  release  him  and  sub- 
stitute another  surety?  "With  the  assent  of  the  defendant  he 
may;  and,  if  no  liability  has  yet  occurred,  the  court  may  per- 
mit the  exchange,  under  such  circumstances,  even  without  such 
assent. 

May  additional  security  be  given  by  the  plaintiff  if  the  one 
first  given  has  subsequently  become  insolvent?  The  law  gives 
him  his  right  of  action;  he  has  complied  with  the  requirement 
that  good  and  solvent  security  should  be  given;  it  is  owing  to 
no  fault  or  laches  of  his  that  he  now  finds  himself  without  a 
firm  foundation:  why  should  he  not  be  allowed  to  offer  a  new 
bondsman?  Clearly  it  is  the  right  of  the  defendant  to  have 
the  attachment  dissolved  because  of  the  insufficiency  of  the 
bond,  whenever  it  shall  become  insufficient,  at  any  stage  of  the 
cause;  and  therefore,  the  plaintiff  should  be  accorded  the  right 

'  Under  §  144  of  the  Oregon  Civil  *  Baere  v.  Armstrong,  62  How.  (N. 

Code,  it  was  held  that  the  surety  was  Y.)  Pr.  515,  (26  Hun.  19.) 

obligated    for     such    disbursements  ^  Boatwright  v.   Stewart,    37   Ark 

though  not  all  incurred  by  the  de-  614 

fendaut    in     the     attachment    suit.  *  Bing  Gee  v.  Ah  Jim,  7  Saw.  117. 
Bing  Gee  v.  Ah  Jim,  7  Saw.  C.  C.  117. 


THE    BOND THE    OBLIGORS.  125 

of  maintaining  liis  cause  bj  repairing  what  lias  become  defec- 
tive through  no  fault  of  his.  Of  course  the  case  would  be 
altogether  different  if  the  bondsman  was  worthless  from  the 
starf  and  the  plaintiff  has  only  discovered  the  fact  after  the 
institution  of  the  suit.  In  such  case  he  must  suffer  the  result. 
His  suit  may  be  dissolved  upon  application  of  the  defendant  in 
a  legal  way,  and  the  plaintiff  cannot  repair  the  breach  at  the 
expense  of  his  opponent. 

Suppose  the  suretj^  to  be  sound  at  first  but  insolvent  subse- 
quently, and  the  plaintiff  should  not  tender  other  and  better 
surety:  may  the  defendant,  (instead  of  moving  to  quash,  or  fil- 
ing a  plea  in  abatement,)  take  a  rule  on  the  plaintiff  to  make 
him  give  a  new  bondsman?  The  defendant  may  not  choose  to 
have  the  proceedings  quashed  at  this  stage.  The  plaintiff  may 
be  insolvent  as  w^ell  as  the  surety;  and,  if  so,  what  recompense 
is  the  defendant  to  have  for  the  wrong  done  him  in  case  of  an 
illegal  and  pecuniarily  disastrous  attachment?  The  suit  may 
have  been  of  several  months  standing;  a  steamboat,  ship  or 
other  valuable  property  may  have  been  in  custody  of  an  officer 
under  the  attachment  seizure,  causing  great  loss;  and  now 
must  the  defendant  be  told  that  his  only  course  is  to  get  rid  of 
the  attachment  and  recover  his  property  without  any  indemnifi- 
cation for  loss? 

In  any  State  where  these  questions  are  not  solvable  by  statute 
provisions,  they  should,  in  justice  and  reason,  be  answered  so 
that  no  wrong  can  be  done  to  either  plaintifi"  or  defendant;  i.  e., 
new  bondsmen  should  bo  substituted  upon  application  of  either 
party. 

The  plaintiff  must  lie  on  the  bed  he  has  made.  He  cannot 
substitute  one  surety  for  another  as  a  matter  of  riglit,  nor  can 
the  court  confer  such  right  when  the  bond  was  wojfthless  ah 
initio  by  reason  of  the  insolvency  of  the  surety,  unless  such 
po\yer  is  given  to  the  court  by  statute.  The  conferring  of 
such  authority,  to  be  exercised  in  case  of  the  death  of  the 
surety,  or  his  removal  from  the  State,  or  his  insolvency,  or 
his   likelihood   to  become  insolvent,  is  found  in  the  statutes 


126  TIIK    IIS-STITUTiON    OF    THE    SUIT. 

of  at  least  one  State;  in  some  others,  tlie  autliority  is  not  so 
broad.  1 

Altlioui2;li  the  subject  of  the  amendment  of  bonds,  hereafter 
to  be  noticed,  iiu-ludes  tlie  subject  of  the  bettering  of  tlie 
securit)'-,  the  substitution  of  a  good  bondsman  for  one  who  lias 
ceased  to  be  sutticicnt  since  he  was  given  and  accepted  rests 
upon  somewhat  dilTerent  grounds  than  other  forms  of  emenda- 
tion. 

The  substitution  of  a  sufficient  bondsman  for  an  insufficient 
one  cannot  be  made  by  the  Supreme  Court  when  the  case  is 
there  on  appeal.  2 

Prior  to  the  issuance  of  the  writ,  there  is  no  reason  why  the 
plaintiff  may  not  amend  a  defective  bond.  Though  the  affida- 
vit, bond  and  petition  have  been  filed,  he  ought  to  be  allowed  by 
the  court  to  amend  any  one  of  tliese,  as  a  matter  of  course,  when 
no  action  has  been  taken  upon  his  prayer.  Should  the  court 
refuse  to  allow  this,  he  may  withdraw  his  suit  and  make  such 
amendments  as  he  chooses  to  make,  and  institute  it  again.  It 
is  the  proper  course  for  him  to  pursue  in  such  a  case.  It  is  far 
better  than  to  go  on  and  find  at  a  later  stage  that  his  pro- 
ceeding has  fatal  and  incurable  defects.  And  in  nothing  is  it 
more  important  than  with  respect  to  the  bond,  that  he  should  be 
clearly  within  the  law.  If  there  are  defects  with  regard  to  the 
surety's  signature,  solvency  or  competency;  the  amount  or 
conditions  or  form  of  the  bond,  or  any  other  matter,  the  phiin- 
tiff  ought  to  make  all  sure  before  the  issuing  of  the  writ, 
while  it  is  in  his  power  to  discontinue  and  begin  anew,  should 
the  court  refuse  to  permit  liim  to  make  the  necessary  changes. 

When  other  interests  than  the  plaintiff's  have  intervened,  the 
plaintiif  cannot  change  his  bond  as  a  matter  of  right.  The 
defendant  is  entitled  to  a  good  bond,  but  his  right  to  dissolve 
the  attachment  because  such  has  not  been  tendered  is  not  to  be 
defeated    by    an    order   of    court    permitting    the    plaintiff   to 

1  Van  Arsdale  v.  Krum,  9  Mo.  397:      Bank  v.  Morris,  13  Towa,  136. 
the  statute  extending  to  any  iusuffi-  2  Durham  v.  Lisso,  32  La.  Ann.  415. 

cieucy  of  the  bond ;  Branch  of  State 


THE    EOND — THE    OBLIGORS.  127 

amend. 'I  "Where  the  court  has  autliority  to  make  sucli  order 
upon  application  of  the  phiintiff,  there  must  have  been  statutory 
creation  of  the  power ;2  and  though  such  power  has  been  con- 
ferred, it  is  far  better  that  the  attaching  creditor  be  in  a  situa- 
tion not  to  invoke  it,  since  there  is  always  a  question  whether 
the  court  will  feel  obliged  to  exercise  such  authority  in  any 
giveh  case.  It  is  not  safe  for  him  to  risk  a  defective  bond, 
though  it  be  such  as  to  hold  in  case  the  defendant  takes  no  pro- 
ceedings to  quash  after  Urst  giving  him  opportunity  to  make 
the  bond  good.^ 

1  In  Missouri,  the  suit  is  not  dis-  ^  Erwin  ■».  Ferguson,  5  Ala.  158; 
missed  because  the  bond  is  insufti-  Benedict  ®.  Bray,  2  Cal.  251 ;  Lea  v. 
cient,  until  opportunity  has  been  Vail,  3  111.  (3  Scam.)  473;  Wood  v. 
given  to  file  another:  Cummings  v.  *  Squiers,  28  Mo.  528;  Beardslee  v. 
Denny,  6  Mo.  App.  602.  Otherwise  Morgan,  29  Mo.  471 ;  Henderson  v. 
in  Florida:  Roulhac  «.  Rigby,  7  Fla.  Druce,  30  Mo.  358;  Starr  v.  Lyon,  5 
33G.  Ct.  538 ;  Planters'  &  Merchants'  Bank 

2  Proskey  ».  West,  16  Mifs.  (8  S.  &  v.  Andrews,  8  Porter,  (Ala.)  404; 
M.)  711 ;  Van  Arsdale  v.  Krura,  9  jMo.  Lowe  v.  Derrick,  9  Porter,  (Ala.)  415 ; 
397;  Jasper  County  v.  Chenault,  38  Scott  v.  Macy,  3  Ala.  250;  Oliver  v. 
Mo.  357;  Lowry  ■?;.  Stone,  7  Porter,  Wilson,  29  Ga.  642;  Irwin  ®.  Howard, 
483 ;  Jackson  «.  Stanley,  2  Ala.  326 ;  37  Ga.  18 ;  Tevis  «.  Hughes,  10  Mo. 
Conklin  «.  Harris,  5  Ala.  213.  See  380;  Wood  v.  Squires,  28  Mo.  528. 
Tyson  v.  Lansing,  10  La.  444. 


128  PKOCESS. 


CHAPTER    lY. 

PROCESS. 

§  1.    The  Summons.  §  4.    The  Writ  — Protecting  the 

2.  The  Writ— in  General.  Officer. 

3.  "        — as  to  Property.  5.    The  Indemnifying  Bond, 

Sec.  1.    The  Summons. 

The  summons  issued  to  the  defendant  in  an. attachment  suit 
differs  in  no  respect  from  that  issued  in  a  suit  to  recover  debt  in 
which  there  is  no  writ  of  attachment  issued.  It  will  therefore 
be  unnecessary  to  dwell  long  on  the  subject.  When  the  defend- 
ant is  reached,  being  either  personally  served  or  served  by  the 
leaving  of  the  summons  at  his  domicile  with  one  legally  compe- 
tent to  receive  it  for  him,  the  personal  suit  against  him  is  fully 
instituted,  and  may  be  prosecuted  to  judgment  for  the  full 
amount  claimed  in  the  petition.  And  when  a  copy  of  the  writ 
of  attachment  is  served  upon  him  (or  left  as  before  stated  with 
regard  to  the  summons,)  and  property  of  his  is  attached,  the 
attachment  suit  is  fully  brought  and  may  be  prosecuted  to  judg- 
ment with  judicial  recognition  of  the  lien  or  privilege  created 
by  the  attachment. 

Acceptance  of  service  by  the  defendant  would  obviate  the 
necessity  of  a  summons;  so  would  his  voluntary  general  ap- 
pearance in  the  absence  of  citation ;  but  the  writ  of  attachment 
and  its  execution  by  the  seizure  of  property  is  no  substitute  for 
summons.  It  is  not  such,  either  with  reference  to  the  personal 
or  to  the  property  action.  However,  the  writ  might  answer  as 
a  summons  if  served  on  the  defendant,  even  though  defective 
as  a  writ.i  In  Pennsylvania  it  has  been  held  that  foreign 
attachment  is  mesne  process,  "  equivalent  to  a  summons  for  the 
commencement  of  a  personal  action." 2 

1  Wasson  v.  Cone,  8G  111.  46.  "  Cornman's  Appeal,  90  Pa.  St.  254. 


THE    SU]SIMONS.  129 

Tlie  statutes  are  uniform,  in  all  the  States,  in  the  requirement 
that  effort  be  made  to  effect  personal  service  upon  the  party 
charged  as  defendant.  There  is  nothing  in  this  different  from 
the  practice  in  personal  suits  generally,  when  the  personal  char- 
acter of  the  attachment  suit  is  considered.  At  this  staofe,  the 
suit  is  nothing  more  than  a  personal  one  where  the  statute 
requires  that  the  summons  shall  be  issued  before  the  writ  ot 
attachment.!  g^t  where  the  writ  is  issued  with  the  summons, 
the  proceeding  already  possesses  a  dual  character.  In  such 
case,  the  summons  has  reference  to  the  ancillary  suit  as  well  as 
to  the  principal.  It  need  not  contain  any  expressed  referenc<3 
thereto,  sinpe  the  service  of  the  attachment  writ  conveys  all  the 
necessary  notice  regarding  it  to  the  defendant,  when  it  is  served 
upon  him. 

The  ancillary  suit,  however,  cannot  be  said  to  be  instituted 
against  the  defendant's  property  so  as  to  be  binding  upon  him, 
unless  the  defendant  be  served,  or  notified  by  publication  after 
an  effort  to  serve  has  failed.  Herein  it  differs  from  a  libel  suit 
against  a  thing  irrespective'  of  the  owner.  In  the  latter,  sum- 
mons is  never  issued.  The  reason  is  there  is  no  personal 
defendant  lo  be  served. 

The  summons,  in  an  attachment  suit,  is  directed  to,  and 
restricted  to,  the  personal  debtor  or  debtors  named  in  the  peti- 
tion as  defendant  to  the  action.  It  is  not  directed  to  persons 
holding  liens  on  the  attached  property  or  otherwise  interested 
in  it.     The  proceeding  does  not  necessarily  affect   their  rights. 

A  summons  not  good  in  the  personal  action  is  not  good  with 
respect  to  the  ancillary  proceeding.  A  statute  of  Michigan 
provides  that,  in  suits  commenced  by  attachment  in  favor  of  a 
resident  against  any  corporation  created  by  another  State,  if  a 
copy  of  the  attachment  with  an  inventory  of  the  property 
attached  shall  have  been  personally  served  on  any  officer,  mem- 
ber, clei'k  Of  agent  of  such  corporation  within  the  State  of 
Michigan,  the  sanie  proceedings  shall  be  had  thereupon,  and 
with  like  effect  as  in  cas6  of  attachment  against  a  natural  person, 

*  Hall  «.  Grogan,  78  Ky.  11:  The  personal,  or  at  the  domicile:  Walker 
attachment  is  void  if  granted  before  v.  Barrelli,  32  La.  Ann.  467;  Speigel- 
the  summons.     Summons  should  be      berg  v.  Sullivan,  1  New  Mex.  575. 

9 


130  PROCESS. 

wliich  slmll  have  been  returned  served  in  lilce  manner  npori  the 
defendant.  1  Commenting  upon  a  case  against  a  foreign  corpo- 
ration which  had  been  proceeded  against  under  this  law,  the 
Supreme  Court  of  the  United  States  remarked  that  the  writ 
seems  "  to  serve  a  double  purpose, — as  a  command  to  the  officer 
to  attach  the  property  of  the  corporation,  and  as  a  summons  to 
the  latter  to  appear  in  the  suit;"  and  added:  "Without  con- 
sidering whether  authorizing  service  of  a  copy  of  the  writ  of 
attachment  as  a  summons  on  some  of  the  persons  named  in  the 
statute — a  member,  for  instance  *  *  ^'  is  not  a  departure  from 
the  principle  of  natural  justice  mentioned  in  Lafayette  Insur- 
ance Co.  V.  French, 2  which  forbids  condemnation  without  cita- 
tion, it  is  sufficient  to  observe  that  we  are  of  the  opinion  that 
when  service  is  made  within  the  State  upon  an  agent  of  a  for- 
eign corporation,  it  is  essential,  in  order  to  support  the  juris- 
diction of  the  court  to  render  a  personal  judgment,  that  it 
should  appear  somewhere  in  the  record  "^  *  *  that  the  corpo- 
ration was  engaged  in  business  in  the  State."  In  other  words, 
the  summons  was  held  not  good  upon  the  corporation  because 
not  served  upon  any  person  authorized  by  it  to  represent  it. 
Yet,  previously  the  court  had  said  that  if  the  attaching  credi- 
tors were  residents  of  Michigan,  "  the  jurisdiction  of  the  court, 
under  the  writ,  to  dispose  of  the  property  attached,  cannot  be 
doubted,  so  far  as  was  necessary  to  satisfy  their  demand.  'No 
question  was  raised  as  to  the  validity  of  the  judgment  to  that 
extent.  The  objection  to  it  was  as  evidence  that  the  amount 
rendered  was  an  existing  obligation  or  debt  against  the  com- 
pany. If  the  court  had  not  acquiz-ed  jurisdiction  over  the  com- 
pany, the  judgment  established  nothing  as  to  its  liability, 
beyond  the  amount  which  the  proceeds  of  the  property  dis- 
charged." ^  It  is  further  stated  that  the  company  or  corpora- 
tion made  no  appearance.  There  was  no  publication  notice. 
The  quere  is.  How  could  the  writ  as  a  summons  be  good  in  the 
ancillary  action  yet  not  in  the  personal  or  principal  suit?  How 
can  there  have  been  jurisdiction  in  either?    Was  not  the  decree 

»  Howell's  Stat.  §  §  8138,  8143.  ^  St.  Clair  v.  Cox,  lOG  U.  S.  350. 

2  18  How.   404. 


THE    SUMMONS.  131 

against  the  property  attaclied  '■^a  departure  from  the  jprinciple 
of  natural  justice  *  *  *  lohichforhids  condemnation  vnthout 
citationP''  Elsewhere  in  this  treatise  it  is  shown  that  seiznre 
does  not  relieve  from  the  necessity  of  notice  on  failure  of  sum- 
mons, in  attachment  suits,  and  seldom  in  any  other  class  of 
actions  in  rem.  That  the  court  is' not  to  be  understood  as  decid- 
ing that  there  was  jurisdiction,  appears  from  the  fact  that  "no 
<piestion  was  raised  as  to  the  validity  of  the  judgment,"  in  the 
ancillary  suit,  without  appearance,  witliout  valid  summons  and 
without  publication. 

The  summons  should  inform  the  defendant  within  what  delay 
he  is  required  to  appear.  If  it  erroneously  state  less  time  than 
the  law  allows,  doubtless  there  could  be  no  valid  deftiult  entered 
for  non-appearance  within  the  stated  period,  and  the  defendant 
might  lawfully  plead  at  any  time  before  the  expiration  of  the 
period  lixed  by  law;  but  it  has  been  held  that  such  default 
would  not  be  absolutely  void;  that  a  summons  erroneous,, by 
reason  of  such  limitation  is  amendable,  and  like  errors  curable, ^ 
Where  six  days  were  stated  when  ten  was  the  legal  period, 
and  an  order  of  publication  was  granted  because  the  return 
showed  that  the  defendant  was  not  found,  and  the  party 
afterwards  personally  appeared  and  sought  to  set  aside  the  pro- 
ceeding on  account  of  the  illegality  of  the  summons,  the  court 
allowed  it  to  be  amended  nunc  pro  tunc.^  It  was  certainlv 
the  right  of  the  defendant  to  appear  within  ten  days  from  serv- 
ice, had  he  been  served;  but,  when  he  could  not  be  found  M'ithin 
reasonable  time,  and  the  officer  had  returned  that  after  diligent 
search  the  defendant  could  not  be  found,  it  is  difticult  to  see 
how  the  mistake  in  the  summons  could  affect  the  default.  When 
that  mistake  had  been  corrected,  the  defendant  stood  as  though 
it  had  never  been  made.  He  could  yet  set  aside  the  default 
upon  other  grounds  and  file  his  answer. 

If  the  officer  make  a  mistake  in  his  return  of  the  summons; 
if,  for  instance,  he  should  report  that  he  has  left  the  citation  at 

*  Watkins  «.  Stevens,   3   How.   Pr.  trand,  45  Barb.  194;    Holmes  «.  Rus- 

38;  Clapp  z;.  Graves,  26  N.   Y.  418;  sell,  9  Dowl.  487;  Catlin  v.  Eickets, 

McCoun  V.  New  York  etc.,  R.  R.  Co.  91  N.  Y.  668. 
50   Id.   176;   Bradbury  v.  Van  Nos-  ^  Gribbon  «.  Freel,  93  N.  Y.  96. 


132  PEOCESS. 

the  residence  of  the  defendant  M-licn  lie  lias  really  left  it  at 
another  house,  the  summons  would  he  worthless  if  the  return 
could  1)6  contradicted.  If  the  fact  of  the  mistake  were  brouerht 
to  the  knowledge  of  the  court  by  an  amended  return,  no  dis- 
astrous consequences  would  necessarily  result;  but  if  the  officer 
should  insist  upon  his  report  as  at  first  made,  so  that  it  could 
not  be  corrected  by  parol  evidence,  he  would  be  liable  for  what- 
ever injury  he  might  cause,  and  the  return  would  not  screen  the 
attaching  creditor  when  sued  for  damages  ' 

Sec.  2.    The  Writ— in  General. 

Under  the  attachment  system  now  prevailing,  the  writ  com- 
manding the  officer  to  seize  property  of  the  debtor  is  not  issued 
in  default  of  ordinary  process;  that  is,  it  is  not  granted  because 
there  has  been  a  return  of  a  previously  issued  summons  show- 
ing that  the  defendant  has  not  been  found,  as  was  formerly  the 
case  when  the  object  of  attachment  was  to  compel  appearance. 
Now  the  summons  and  the  writ  may  go  out  together;  for  the 
present  purpose  is  not  only  to  cite  the  defendant  but  also  to 
create  immediately  a  lien  upon  his  property  to  conserve  it  for 
eventual  execution.  The  affidavit  having  afforded  ex  parte  evi- 
dence that  ordinary  j^rocess  would  be  inadequate  and  that 
the  conditions  exist  under  which  the  statute  allows  the  extraor- 
dinary; and  the  bond  having  been  given  to  protect  the  defend- 
ant against  any  abuse  of  the  latter,  the  next  step  is  the  issuance 
of  the  order  for  taking  from  the  defendant  any  property  of  his 
not  exempt  from  execution,  and  for  attaching  in  the  hands  of 
others  what  may  be  due  him  hy  them,  or  held  for  him  by  them, 
to  the  amount  of  the  debt  and  probable  costs. 

There  is  now,  from  the  incipiency  of  the  proceedings,  a  dual 
action;  a  movement  against  the  defendant  to  obtain  a  personal 
judgment  against  him,  and  a  movement  against  his  property 
when  attached,  to  obtain  a  judgment  which  shall  be,  in  effect, 
against  that:  susceptible  of  being  executed  against  that  only  if 
he  shall  not  be  summoned  and  shall  not  appear  though  notified 
by  publication;  susceptible  of  being  executed  against  that  or 

»  Buckingliam  c  Osbrtffte.  44  Ct>  133. 


TIIK    WltlT — IN    GENKUAL.  133 

any  other  propcrt}'  if  lie  sliall  liave  been  siiininoned  oi*  shall 
lune  appeared  and  shall  have  had  judgment  rendered  against 
him  with  pi"ivilege  upon  the  property  attached. 

The  issue  of  a  summons  is  no  less  essential  now  tlian  formerly. 
The  difference  is  that  it  need  not  be  returned  void  before  the 
writ  of  attachment  can  be  issued..  Attachment  of  the  body  of 
the  debtor  for  debt  having  been  abolished,  it  can  no  longer  be 
".aid  that  the  attachment  of  his  property  is  a  substitute  for  that, 
md  that  he  is  brought  into  court  by  his  property.  Indeed,  the 
custom  of  London  did  not  go  so  far  as  that,  thoiiofh  some  deci- 
sions,  rendered  even  since  the  abolishment  of  personal  arrest  for 
debt,  seem  to  have  been  written  under  the  impression  that  such 
was  the  case.  True,  the  purpose  was  to  compel  appearance;  but 
there  was  no  procedure  on  the  assumption  that  the  purpose  was 
effected  by  the  seizure;  that  is,  the  debtor  -vvas  not  deemed,  to 
be  in  court  because  his  property  was.  This  plainly  appears 
from  the  circumstances  that  four  proclamations,  at  different 
times,  calling  upon  him  to  come  into  court,  must  be  made  before 
a  judgment  by  default  could  be  rendered;  that  the  plaintiff' was 
required  to  give  pledges  to  restore  in  case  the  defendant  should 
appear  within  a  year  and  a  day;  and  that  final  judgment  could 
not  be  rendered  because  the  defendant  was  not  in  court.  ^ 

The  proceedings  were  not  dual  under  the  custom;  they  were 
personal  in  case  the  defendant  appeared  and  entered  bail  as  in 
any  ordinary  action ;  they  were  personal  if  he  did  not  appear, 
but  they  could  result  only  in  a  judgment  by  default  for  non- 
appearance to  be  perfected  only  by  the  legal  prescription  of  a 
year  and  a  day.  They  were,  in  this  respect,  rather  a  procedure 
by  legal  distraint  for  debt  than  a  suit  at  law  in  the  proper  sense 
of  the  term. 

Under  the  system  now  generally  prevailing  in  this  country, 
the  attachment  writ  should  be  so  issued  and  so  executed  as  to 
prove  effective  in  case  the  suit  should  prove  to  be  in  rem  only, 
50  far  as  concerns  its  effect.     The  creditor  should  be  as  cautious 

1  Locke  on  For.  Att.  *2,  *3,  citing,  Case,  1   Wms.  Saunds.  67:  Banks  ». 

to  show  the  custom,  1  Rol.  Abr.  Cus-  Self,  5  Taunt.  2;]4;  Crosby  «.  Hether- 

loms  of  London,  K.  1,  3  and  4;   Hor-  ington,  4  M.  &  G.   933;  Magrath  ■». 

lon  «.  Beckman,  6  T.  R.  760 ;  Turbill's  Hardy,  5  Bing.  N.  C.  782. 


134  PROCESS. 

as  though  he  knew  that  the  debtor  would  l)C  notified  oidy  hy 
])ul)lication.  lie  should  not  depend  U])on  the  curing  of  defects 
by  the  appearance  and  pleading  of  the  debtor.  He  should 
bring  himself  fully  within  the  statutoiy  requirements  as  to  the 
affidavit  and  the  bond.  He  should  bear  in  mind  that  the  object 
of  the  suit  is  to  obtain  a  final  judgment  under  which  the 
attached  j)roperty  nuiy  be  unqualifiedly  sold,  and  to  which 
the  purcliaser  may  obtain  a  defensible  title. 

Tlie  writ,  though  not  unusually  issued  by  the  clerk,  is  an 
emanation  from  the  court.  The  attachment  being  issued  as  a 
matter  of  course  upon  the  compliance  by  the  applicant  with  all 
legal  requirements,  may  as  well  be  granted  by  the  court  through 
the  clerk  as  to  be  done  through  the  agency  of  the  judge's  own 
right  hand.  No  judicial  deliberation  is  called  into  operation, 
and  the  act  is  done  by  the  clerk  for  the  jndge  under  the  general 
provision  found  in  the  statute,  and  a  presumed  general  order,  as 
though  under  a  special  order  from  the  court  in  the  particular 
case. 

Is  the  issuance  of  the  writ,  then,  a  judicial  act  when  done  by 
the  clerk?  It  is  said  to  be  a  ministerial  act,  but  it  is  not  there- 
fore any  the  less  judicial.  The  judge  acts  through  the  minister; 
the  latter  is  his  right  hand.  Wide  is  the  difference  between 
sucli  a  minister  and  an  executive  officer  of  the  court.  The 
former  is  the  servant  of  the  court:  the  latter  is  the  servant  of 
the  county  or  district  of  which  he  is  an  officer.  A  judge  may 
make  a  clerk  amend  his  minutes  or  any  form  of  judgment  drawn 
by  the  latter,  but  he  cannot  make  a  marshal,  sheriff  or  consta- 
ble amend  his  return.  The  marshal  is  an  officer  of  the  United 
States,  in  his  district;  the  sheriff  is  an  officer  of  the  State  and 
county;  the  constable  is  an  officer  within  his  geographical 
limits,  but  the  clerk  is  an  officer  of  the  court,  minister  of 
the  court,  a  doer  of  ministerial  acts  for  the  court,  a  performer 
of  certain  judicial  functions  under  the  actual  or  presumed  direc- 
tion of  the  judge  so  as  to  make  his  ministerial  act  the  judge's 
act. 

The  clerk  could  not  legally  make  and  deliver  a  writ  of  attach- 
ment,  though  the  statute  may   contemplate   the  making  and 


THE    WKIT — IN    GENERAL.  135 

delivering  by  liim  in  liis  ministerial  capacity,  were  the  hench 
without  a  judge.  During  the  time  of  tlie  vacancy  of  the  juclg- 
sliip,  no  attachment  could  be  legally  issued.  The  awarding  oi 
process  is  presumably  done  always  by  the  judge.  It  is  as  much 
a  judicial  function  as  the  rendei-ing  of  a  decision.  A  judge 
may  decide  a  cause  and  then  have  his  minister  write  out  the 
Judgment.  He  may  make  a  general  order  that  when  an  affida- 
vit and  bond  are  presented  to  the  clerk,  the  latter  shall  issue 
process  thereon;  or  the  statute,  (as  is  usual,)  may  suppl_y  the 
place  of  such  standing  order. 

Where  there  is  statutory  authorization  for  the  clerk  to  issue 
the  process,  as  is  generally  the  case,  he  still  is  presumed  to  act 
under  the  authority  of  the  court;  and  it  would  seem  that  a  dif- 
ferent construction  would  be  equivalent  to  holding  that  judicial 
powers  may  be  directly  conferred  upon  the  clerk.  In  all  cases 
in  which  the  clerk  validly  issues  process,  he  ought  to  be  con- 
sidered as  acting  for  the  judge,  as  his  minister:^  but  the  doc- 
trine that  the  issues  of  attachments  by  clerks  are  judicial  acts  is 
not  always  recognized  by  the  courts. 

"Whether  manipulated  by  the  clerk  or  the  judge  in  its  issu- 
ance, the  writ  is  a  judicial  emanation.  It  is  a  step  by  the  court 
in  the  exercise  of  jurisdiction.  It  is  an  exercise  of  jurisdiction 
by  the  court  whether  issued  directly  by  the  judge,  or  by  his 
ministerial  officer  under  his  presumed  direction  when  he  may 
be  utterly  ignorant  of  the  application  of  the  plaintiff  for  the 
attachment. 

When  the  clerk  is  unauthorized  by  law  thus  to  represent  the 
judge,  the  latter  can  give  him  no  general  authority  to  issue 
attachments;  and  the  issuance  of  the  writ  by  the  former  under 
such  circumstances  would  not  be  an  exercise  of  jurisdiction. 3 
The  usual  statute  provision  for  issue  by  the  clerk  renders  it 
vmnecessary  for  the  judge  to  direct  him  in  each  particular  case. 
When  an  order  of  court  is  required  to  authorize  the  clerk  to 

>  Van    Vechten    v.     Paddock,    12  joy,  6   Minn.  183;   Guerin  «.  Hunt,  8 

Jolms.  178.  Minn.  477;  Lewis  v.  Dubose,  29  Ala. 

^Greenvault  v.  F.  &  M.  Bank,  2  219,  Goldsmith  «.  Stetson,  39  Ala.  183. 
Doug.  (Mich.)  498 ;  Morrison  v.  Love- 


136  PROCESS. 

issue  the  writ,  attachment  is  void  if  the  writ  is  issued  hy  hiin 
without  such  order.  1 

Sometimes  the  affidavit  is  made  in  one  county,  and  the  writ 
is  issued  in  another; 2  and  if  the  bond  may  be  executed  out  of 
the  jurisdiction,  still  the  clerk  cannot  respond  to  the  application 
for  the  writ  unless  the  statute  of  the  State,  with  reference  to 
both  the  afhdavit  and  the  bond,  has  been  obeyed,  whatever  its 
requirement. 

The  form  and  requisites  of  the  writ  vary  under  the  different 
State  systems,  but  it  should  always  show  the  title  of  the  cause, 
the  j^arties  to  the  suit,  the  court  whence  it  emanates,  tlie  amount 
of  the  demand,  the  officer  entrusted  with  its  execution,  the  time 
within  which  it  must  be  returned,  and  whatever  else  its  statute- 
authorization  may  require.  It  should  show  prima  facie  the 
authority  of  the  officer  to  execute  it;  and  therefore  it  is  essen- 
tial that  it  bear  evidence  of  its  coming  from  the  court  to  the 
executive  officer.  ]^o  one  is  bound  to  recognize  a  sheriff  or  a 
marshal  or  any  other  functionary's  right  to  levy  an  attachment, 
merely  because  of  his  official  character,  though  that  creates  a 
presumption  of  authority  ;3  but  all  must  respect  it' when  the 
special  authorization  is  exhibited.  The  officer  himself  would 
be  unprotected  should  the  writ  be  without  the  authority  of  a 
court  having  jurisdiction  to  issue  it.  If  it  is  void,  he  could 
make  a  levy  thereunder  only  at  his  peril. 

When  not  only  the  amount  but  the  nature  of  the  claim,  and 
even  specifications,  must  appear  in  the  writ  or  by  an  appendage 
thereto,  the  omission  of  such  matter  would  be  fatal. ^  The  time 
of  the  return  is  important  since  it  shows  the  limit  of  the 
officer's  authority  with  respect  to  time;  and  within  that  limit, 
he  may  make  a  return  showing  a  levy  on  any  legal  day. 

The  writ  directs  the  preliminary  seizure  of  property  of  the 
defendant,  in  quantity  enough  to  satisfy  the  plaintift''s  demand. 

1  Philpott  v.  Newman,  11  Neb.  299:  a  Wright  v.  Smith,  66  Ala.  545. 

Held  that  in  a  suit  against  a  non-resi-  *  Miller  v.  Fay,  40  Wis.  633. 

dent  for  a  debt  not  due,  an   attach-  *  Hanson  v.  Dow.  51   Me.  165,  and 

ment  issued  by  the  clerk,   without  cases  cited  therein, 
an  order  of  court,  is  void. 


THE    WKIT — IN    GENEKAL.  137 

The  particular  property  to  be  seized  is  usnallj  pointed  out  by 
the  plaintiff  to  the  sheriff,  in  written  instructions. 

The  writ  is  to  be  returned,  in  accordance  with  its  provisions, 
to  the  court  whence  it  was  issued.  This  would  be  implied,  if 
not  expressed  in  the  instrument  itself.  If  there  is  not  only 
time  but  place  of  return  prescribed  in  the  mandate;  and  if, 
in  expressing  the  latter,  there  should  be  a  mistake  as  to 
the  court,  the  error  would  not  be  fatal  if  the  circumstances 
precluded  any  misunderstanding  as  to  what  court  the  writ  is 
returnable,! 

If  the  grounds  of  the  attachment  have  to  be  inserted, 
(which  is  required  in  some  States,)  they  should  correspond 
with  those  in  the  affidavit  ;2  and  when  the  writ  is  without 
the  specifications  required,  it  is  void.^  If  the  suit  is.  by  a 
firm,  the  names  of  the  members  should  be  stated. *  When 
the  debtor's  Christian  name  appeared  on  the  face  of  the 
attachment  as  fictitious,  all  proceedings  therunder  were  held 
void,  and  the  officer  and  creditor  declared  liable  for  attach- 
ing, though  the  person  designated  by  the  fictitious  name  was 
the  owner  of  the  property  seized.  ^ 

The  clerk  should  delivei-  the  writ  to  the  officer  who  is  to 
execute  it,  immediately  upon  its  being  completed.  He  may 
60  deliver  it  thi'ough  the  agency  of  the  plaintiff,  who,  should 
he  neglect  to  give  it  to  the  officer,  would  be  the  only  person 
injured  and  would  have  himself  alone  to  blame.  The  clerk  is 
therefore  safe  in  handing  the  writ  to  the  attachment  plaintiff. 
He  usually  does  so;  and  this  is  convenient  to  the  latter,  (rather 
his  attorney,)  wdio  usually  has  instructions  to  give  as  to  the 
property  to  be  seized,  its  whereabouts,  etc.,  just  as  when 
directing  an  execution. 

1  Talbot  V.   Pierce,  14  B.  Monroe,  set  forth   in  tlie   writ  when   it  was 
195.  based   on   a  money  count,  the   omis- 

2  Misrecital     held    fatal     in  Ala.:  sion  was  held  fatal.     Saco  «.  Hopkin- 
Woodley  v.  Shirley,  Minor,  14.     But  ton,  29  Me.  268 ;  Osgood  v.  Holyoke, 
not  in   Miss:  Lovelady  v.  Ilarkins,  48   Id.  410;   Neally   v.   Judkins,   Id. 
14  Miss.  412;  Clauton  v.  Laird,  12  Id.  566:  Hanson  v.  Dow,  51  Id.  165. 
568.  *  Hirsh  v.  Thurber,  54  Md.  210. 

3  In  Maine,  the  amount  and  charac-  ^Patrick  v.  Soliuger,  9  Daly,  (N. 
ter  of  the  claim  not  being  specifically  Y.)  149 


138  PROCESS. 

Immediate  delivery  on  the  part  of  the  clerk  becomes  very 
important  when  there  are  rival  creditors  running  a  race  for 
preference,  and  where  the  law  treats  such  writs  by  the  rule  Jirst 
come,Jlrsi  served.  There  is  an  exception  in  case  of  the  delivery 
of  such  a  writ  to  the  executive  officer  on  a  dies  noii — such 
delivery  gaining  no  advantage  by  thus  anticipating  the  next 
judicial  day.i  Attachments,  like  other  civil  writs,  cannot  be 
issued  from  the  court  to  the  officer  on  Sunday,  unless  there  is 
statutory  authority  therefor;  because  such  act  would  be  con- 
trary to  the  common  law.^  If  the  granting  and  issuing  of 
civil  process  is  a  judicial  act  though  done  through  a  ministerial 
officer,  it  clearly  comes  under  the  common  law  inhibition  with 
respect  to  the  sabbath.  Dies  Dominicus  non  est  jundiGus. 
Criminal  process  is  exceptional,  by  statute,  in  England  with 
regard  to  specified  crimes;  and  more  generally  so  in  the  United 
States:  warrants  for  offenders  being  issuable  on  Sundays. 

If  the  issue  of  an  attachment  by  the  clerk  is  a  ministerial 
act  in  such  sense  that  it  is  not  judicial,  it  does  not  come  under 
the  common  law  inhibition. ^  It  is  not  safe  for  a  practitioner 
to  rely  upon  the  judicial  character  of  the  act  in  the  present 
state  of  opinion  upon  this  subject.  Distinction  has  been  drawn 
between  orders  of  attachment,  some  being  held  judicial  and 
some  ministerial;  and,  though  such  distinction  seems  unwar- 
rantable, it  has  to  be  respected  where    the    courts  recognize  it. 

1  Whitney  «.  Butterfield,  13  Cal.  terial  acts  were  valid  before  St.  29 
335;  Blair  v.  Shew,  24  Kan.  280.  In  Car.  2,  c.  7,  so  that  an  arrest  on  civil 
the  latter  case  held  that  an  alias  process  on  Sunday  was  legal.  Mack- 
order  made  on  Monday  will  not  au-  aUey''s  Case,  9  Coke,  65.  If  then  the 
thorize  an  attachment  if  a  void  levy  case  were  to  be  determined  by  the 
has  been  made  on  Sunday  upon  the  principles  of  the  common  law,  the 
first  order.  question    would     be,    whether    the 

2  3  Bl.  Com.  277;  Swann«.  Broome,  filling  up  of  a  blank  writ  and  deliv- 
8  Burr.  1595.  ering  it  to  an  olBcer  would  be  a  jiu 

3  Johnson  v.  Day,  17  Pick.  106,  dicial  or  a  ministerial  act."  Tl)is  is 
109,  where  it  is  said :  "Another  ob-  an  unfair  putting  of  the  question; 
jection  is  that  the  writ  of  attachment  it  should  be  whether  the  ordering  of 
*  *  *  was  void,  the  same  having  the  attachment  is  a  judicial  or  a 
been  made  and  delivered  to  the  offi-  ministerial  act.  The  illustration 
cer  on  Sunday.  By  the  common  from  9  Coke  is  not  in  point,  for 
law,  all  judicial  acts  done  on  Sunday  arrest  on  civil  process  is  an  executive 
are  held  void  *  *  *  but    all    minis-  act. 


THE    WKIT IN    GENERAL.  139 

Under  statutory  regulations,  the  gran  tin  o-  of  tlie  order,  as  well 
as  the  execution  of  it,  on  Sunday  or  any  dies  noii,  is  generally 
illegal,  and  may  be  made  the  ground  for  dissolving  the  attach- 
ment. 1 

A  writ  oi  fieri  facias  or  any  execution  writ  is  entitled  to  no 
favor  over  an  attachment  wn-it,  and  the  clerk  should  first  deliver 
the  one  which  is  first  in  the  order  of  time.^  But  this  rule  as 
to  the  order  of  delivery  should  not  prevent  the  clerk  from  giv- 
ing a  prepared  writ  to  a  second  applicant  for  attachment  when 
the  first  is  not  present  to  receive  his.^  Whether  the  practice 
is,  in  any  State,  for  the  clerk  to  deliver  writs  to  plaintiffs  to  be 
by  them  given  to  the  officer  with  such  instructions  as  they 
choose  to  impart,  or  for  him  to  deliver  them  directly  to  the 
executive  officer,  the  rule  is  the  same  as  to  the  order  in  wliich 
they  should  be  delivered.  Any  partiality  1)y  the  clerk  result- 
ing in  an  undue  advantage  to  one  creditor  over  another  would 
render  him  personally  liable  to  the  injured  party. 

The  writ  must  go  into  the  officer's  hands  in  a  perfect  state, 
since  it  is  his  warrant  for  the  exercise  of  the  sovereign  act  of 
taking  a  man's  property  away  from  him  at  the  law's  behest.  If 
not  perfect,  it  cannot  be  amended  in  any  essential  feature  after 
property  has  been  attached  pursuant  thereto.  If  the  attach- 
ment is  void  for  want  of  authority,  no  emendation  of  the  war- 
rant can    cure  what  has   been    unlawfully  done.     It  is  of  the 

'  Held  in  Blair  «.  Shaw,   24  Kan.  Cow.  75 ;  Geer  v.  Putnam,   10   Mass. 

280,  that  a  levy  is  void  if  made   on  312;     Story  -y.    Elliot,    8    Cow.    27; 

Sunday,  and  voidable  if  made  on  an  Morgan  -y.  Richards,  1  Browne,  (Pa.) 

alia^  order    on    Monday.     Held    in  171;  Butler  v.  Kelsey,  15  Johns.  177; 

Johnson  t\  Day,  17  Pick.  106,  and  in  Hoghtaling  ».  Osborn,  15  Johns.  119; 

Tracy  «.  Jenks,   15   Pick.   4(55,  467,  Fields.  Park,   20   Id.    140;     Fox  v. 

that  the  writ  may  be  issued  on  Sun-  Abel,  2  Ct.  541;  Pierce  v.  Atwood,  13 

day,  after  sunset;    but   in  Fifield  v.  Mass.  324,   347;    Cotton   e.  Iluey,  4 

AVooster,  21  Vt.   215,   held   that   the  Ala.  56. 

writ  could  not  he  issued  on  Saturday  ^  Bradley's  Appeal,   89  Pa.  St.  514. 

evening  after  sunset — each  decision  An  attachment  writ  Avas  put  into  the 

following  its  governing  statute.     In  sheriff's  hands  at  2  o'clock,   10  min- 

Alabama,  the  writ  is   held   to  be   ir-  utes;  a  fi  f<i  ai  3   o'clodv:  tlie    first 

regularly  issued,  if  done  on  Sunday.  was   pi'eferred,   but    the   preference 

Matthews  i\  Ausley,  31  Ala.  20.     In  was  modified  owing  to   some    agree- 

general,   see     Butler  v.    Kelsey,   15  ment  wMth  the  trustees,  etc. 

Johns.  177;  Delamater  v.   Miller,    1  » Lick  t\  Madden,  36  Cal.  208. 


140  PROCESS. 

highest  importance  therefore,  not  only  to  tlie  plaintifT's  interest 
but  to  tlie  officer's  protection,  that  the  writ  be  right  before  it  is 
acted  upon. 

There  can  be  no  reason  why  it  may  not  have  defects  repaired 
before  the  levy.  Nobody  is  in  court  but  tlie  plaintiff;  nobody 
can  oppose  the  plaintiff's  application  to  have  the  writ  chauged 
in  form  and  substance  so  as  to  accord  with  the  alhd;ivit  and 
petition,  and  no  judge  should  refuse  to  correct  his  own  act  in 
issuing  a  defective  mandate. 

After  the  levy,  the  summoned  defendant  has  an  interest  to 
oppose  the  bettering  of  a  bad  writ;  the  court  must  let  him  be 
heard  contradictorily,  if  the  plaintiff  should  pray  for  amend- 
ment; the  court  itself  is  incompetent  to  make  the  bad  writ 
good,  if  it  has  failed  to  acquire  jurisdiction  by  reason  of  non- 
conformity to  law  thus  far,  in  any  respect. 

Even  an  amendment  of  the  writ,  made  after  the  levy  with 
the  assent  of  the  defendant,  will  not  retroactively  make  the 
writ  good  in  relation  to  other  writs  of  attachment,  all  against 
the  same  property.  ^ 

After  service,  a  writ  cannot  be  altered  to  insert  a  direction 
for  the  summoning  of  a  trustee.  ^  The  same  is  true  with  re- 
gard to  the  summoning  of  a  garnishee.  The  reason  is  that  if  a 
writ  could  be  so  altered  after  service,  the  defendant  would  have 
no  official  notification  of  the  fact.  He  could  only  have  it  by 
the  service  of  a  second  writ  after  tlie  summoning  of  the  trustee 
or  garnishee,  and  that  would  not  be  an  amendment  of  the  first. 

When  a  writ  is  amendable  between  the  levy  and  the  judg- 
ment, its  amendment  cannot  have  such  retroactive  effect  as  to 
make  the  attachment  lien  outrank  a  mortgage  given  by  the 
defendant  before  the  amendment, ^  unless  the  modification  is 
of  a  slight  character  and  not  such  as  is  necessary  to  give  valid- 
ity to  the  levy.  If  the  defect  of  the  writ  is  that  of  using  a 
wrong  name,  directing  the  attachment  of  one  man's  property 
when  that  of  another  should  be  seized,  the  proper  course  is  to 
withdraw  the  writ   and  issue    a   new  one.     If  amendment  is 

iDanielson  v.    Andrews,   1   Pick.  2  pi-Q^n  ».  Neale,  30  Allen,  74. 

156;  Putnam  v.  Hall,  3  Pick.  445.  See  »  Drew  v.  Alfred  Bank,  55  Me.  450, 
Atkins  V.  Womeldorf,  53  Iowa,  150. 


THE    WRIT IN    GENERAL.  141 

allowed,  a  new  levy  would  be  necessary,  even  if  tlic  property 
has  already  been  seized  as  that  of  the  wrong  person  J 

Whether  a  misnomer  may  be  corrected  or  not,  after  the  serv- 
ice of  the  summons  and  tlie  execution  of  the  writ,  depends 
greatly  upon  the  question  whether  the  coi-rection  would  impair 
the  rights  of  the  defendant,  or  -co-attachers,  or  any  third  per- 
sons. The  error  is  not  amendable  if  it  cannot  be  corrected  with- 
out injuring  some  party.  ^  A  misnomer  may  be  disregarded 
when  the  sense  is  apparent. ^  Slight  clerical  errors,  such  as 
the  omission  of  a  letter  in  a  name  or  the  insertion  of  one,  or 
even  a  wrong  date  of  return,  where  no  one  can  fail  to  appre- 
hend the  meaning,  may  be  made  after  the  levy.^ 

If  a  w^rit,  issued  out  of  the  proper  court  after  jurisdiction 
acquired,  should  bear  a  wrong  seal;  if,  for  instance,  it  should 
bear  the  seal  of  the  Circuit  instead  of  the  District  court  when 
Issued  by  the  latter,  it  may  be  amended.  ^  Such  an  error  ought 
to  be  amendable  anywhere,  because  there  can  be  no  doubt' as  to 
what  court  issued  the  writ,  and  therefore  none  that  its  seal 
ought  to  have  been  impressed  upon  the  mandate;  and  it  injures 
no  one  to  have  such  an  error  of  inadvertence  corrected  when 
discovered. 

If  a  writ  is  wrongly  directed,  the  address  may  be  summarily 
righted  by  the  clerk;  though,  should  it  not  be  righted,  yet  if 
the  sheritf  knows  that  the  order  is  meant  for  him,  and  goes  on 
to  make  the  levy,  his  action  will  not  be  void.^  Trouble  a»d 
contention  might  ensue,  should  he  have  in  hand  a  junior  writ 
of  attachment  against  the  property  of  the  same  defendant,  prop- 
erly directed;  but,  even  in  such  case,  he  ought  to  call  the  clerk's 
attention  to  the  error  and  have  it  corrected,  if  he  is  cognizant  of 
it,  or  go  on  and  make  the  levy,  knowing  that  the  court's  order 
must  be  obeyed  though  the  evidence  of  it  be  defective.  Where 
there  is  no  rival  writ,  there  would  be   only  the  debtor  to  coin- 

»  Gile  V.  Devens,  11  Cush.  59.  *  Wight    v.    Hale,    2    Cusli.  486 ; 

2  DuUon  V.  Simmons,  65  Me.  583;  Wellover  v.  Soule,  30  Mich.  481. 
Flood  V.  Randall,  72  Me.  439.  ^  Murdough  v.  McPherrin,  49  I<?wa, 

^  Lovelady    v.    Harkins,   14   Miss.  470. 
412.  «  Warren  v.  Purtell,  63  Ga.  428. 


142  PROCESS. 

plain  of  the  emendation,  and  certainly  his  compUiint,  under  the 
circumstances,  would  be  of  no  avail.  ^ 

See.  3.    The  Writ— as  to  Property. 

It  is  a  peculiarity  of  this  writ  for  the  seiznre  of  property, 
that  wdiile  it  has  reference  only  to  the  defendant's  property,  it 
is  not  directed  against  any  specitied  thing,  though  there  are  ex- 
ceptional cases.  In  this  respect  it  is  unlike  an  admiralty  war- 
rant which  is  a  mandate  for  the  arrest  of  the  property  therein 
stated;  unlike  any  order  of  seizure  issued  to  vindicate  a  pre- 
existing lien.  It  is,  on  the  contrary,  like  an  execution  which 
is  a  command  to  the  executive  officer  to  seize  any  lawfully  seiz- 
able  property  of  the  defendant  against  wdiom  judgment  has 
been  rendered. 

The  writ  of  attachment,  issued  at  the  beginning  of  a  suit,  is 
really  a  preliminary  execution  dependent  for  its  ultimate  efficacy 
upon  the  rendering  of  judgment  in  favor  of  the  plaintiff.  It 
will  be  better  understood  by  treating  it  as  such.  It  has  all  the 
characteristics  of  a  writ  of  execution  in  the  first  stao-e.  The 
plaintiff  may  point  out  property  to  the  officer.  The  offi- 
cer may  require  security  for  indemnity  in  doubtful  cases. 
The  property  seized  comes  into  the  lawful  custody  of  the  officer. 
Enough  should  be  attached  to  cover  the  alleged  indebtedness  of 
the  defendant,  without  excessive  margin.  Ko  greater  loss 
should  be  imposed  on  the  debtor  than  is  reasonably  necessary  to 
do  justice  to  the  creditor  and  satisfy  the  other  demands  of  the 
law.  Competing  attachments  usually  take  rank  in  chronological 
order  as  in  executions.  The  parallel  will  hold  good  in  many 
other  particulars.  When  judgment  in  favor  of  the  attaching 
creditor  has  been  obtained,  his  original  writ  becomes  merged  in 
the  writ  of  execution,  as  his  attachment  lien  in  becoming  per- 
fected is  merged  in  the  judgment  lien. 

Though  directed  to  no  specific  property  of  the  defendant,  the 

'  In  Iowa,  the  writ  may  be  amend-  Tex.  633,   citing   Porter  v.  Miller,  7 

ed  after  the  levy.     Atkins  v.  Worn-  Tex.   483;   May  v.   Ferrill,    22  Tex. 

eldorf,    53   Iowa,    150.      In    Texas,  344;  Cartwright  v.    Chabert,  3  Tex. 

amendments  to  writs    are  liberally  2G1 
allowed:     Whilteuberg  v.  Lloyd,  49 


THE    WRIT AS    TO    PEOPEKTT.  1-13 

writ  must  be  understood  as  a  mandate  confined  to  the  seizure  of 
that  which  may  be  lawfully  attaclied;  so  that,  though  written 
in  general  terms,  it  would  not  be  applicable  to  things  which 
are  not  attachable.  Though  the  term  property  may  include 
lands  as  well  as  goods,  yet  the  writ  must  be  understood  in  con- 
nection with  the  law  of  the  place,  and  the  officer  is  bound  so  to 
understand  it  and  to  act  upon  it.  If  land  property  is  seizable, 
under  statute  provision,  upon  failure  to  find  attachable  personal 
property,  the  writ  must  be  read  as  conveying  such  contin- 
gent authority.  It  must  not  be  understood  as  a  warrant  for 
attaching  anything  exempt  from  seizure  by  law.  If  exempt 
property,  mortgaged  chattels  in  possession  of  the  mortgagee, 
funds  or  assets  validly  assigned,  and  the  like,  are  directly  at- 
tached by  the  officer,  under  a  valid  writ  empowering  him,  in 
general  terms,  to  attach  property  of  the  defendant,  he  cannot 
shield  himself  under  such  writ  for  his  wrongful  act.  For,  as 
before  remarked,  th.e  writ  is  to  be  understood  in  relation  to  the 
law;  to  be  executed  only  upon  property  legally  liable,  and  to  be 
so  employed  as  to  subserve  the  purpose  for  which  the  creditor 
caused  the  court  to  issue  it.  If  the  law  has  made  an  exception 
in  authorizing  property  to  be  attached  for  debt,  the  general 
"writ  must  be  read  as  containing  such  exception.  Illustration 
may  be  found  in  the  provisions  relative  to  exempt  homesteads. 

No  attachment  can  be  issued  against  an  insolvent  national 
bank;  and  the  question  of  insolvency  has  reference  to  the  time 
of  the  attachment.  Subsequent  acquisition  of  money  or  assets 
cannot  be  considered  in  determining  this  question,  unless  the 
right  to  them  existed  at  the  time  of  the  attachment  in  the  sense 
that  the  bank  then  had  property  in  them.  The  payment  of 
large  debts  in  full  by  the  bank  after  the  levy  does  not  exclude 
the  corporation  from  opposing  the  attachment  as  invalid  by 
reason  of  the  insolvency  of  the  bank.i 

The  inhibition  extends  to  such  banks  when  they  are  about  to 

'  Raynor  v.  Pacific  National  Bank,  508.     Held,  in  Raynor's  case,  that  § 

93  N.  Y.  371;  R.  S.   of  U.  S.  §  5242;  5242,  (cited,)  is   not  repealed  by  §  4 

Rol)inson  v.  National  Bank  of  New-  of  Act  of  July  12,  1883. 
berue,  81  N.  Y.  385 ;  37  Am.   Rep. 


144  PROCESS. 

become  insolvent;*  but  it  is  inapplicable  to  solvent  national 
banks,  so  that  if  one  of  tlieni  has  effects  in  a  State  other  than 
that  in  which  it  is  located,  they  may  be  attached  in  a  suit  against 
the  bank,  2 

How  can  the  officer  know  whether  or  not  a  national  bank  is 
insolvent  or  about  to  become  so?  Ordinarily  he  cannot  know; 
and,  in  any  case,  if  he  does  not,  lie  is  not  to  be  held  pecuni- 
arily responsible  for  the  want  of  such  knowledge.  The  writ 
being  directed  generally  against  the  property  of  the  defendant, 
the  officer  can  only  do  to  the  best  of  his  knowledge;  and  if  the 
creditor  insists  upon  the  execution  of  the  writ  upon  property 
of  doubtful  liability,  he  should  give  an  indemnifying  bond. 

Sec.  4.    The  Writ  Protecting  the  Officer. 

The  writ  is  a  complete  shield  for  the  sheriff,  if  it  is  valid  and 
issued  from  a  court  clothed  with  jurisdiction,  and  he  does  his 
duty  thereunder.  Whether  the  plaintiff's  claim  is  just  or  not; 
whether,  if  just,  it  is  properly  collectible  by  the  process  of 
of  attachment  or  not;  whether,  if  so  collectible,  the  legal 
grounds  for  seizure  are  duly  sustained  by  subsequent  proof  or 
not,  the  officer  is  protected  by  a  writ  in  proper  form  issued  in 
conformity  to  statute  by  rightful  authority,  so  long  as  he  does 
his  duty  as  an  officer  under  the  mandate,  and  does  nothing 
more.'  He  would  be  doing  something  more  if  he  should 
knowingly  seize  other  property  than  that  of  the  defendant,  or 
do  so  without  proper  inquiry;  for  the  writ  is  necessarily  con- 

1  Nat.  S.  L.  Bank®.  Mech.  Nat.  140;  Banta  «.  Reynolds,  3  B.  Monroe, 
Bank,  89  N.  Y.  407.  80;  Garnet  v.  Wimp,  Id.  8G0;  Owens 

2  Robinson  ?).  Nat.  Bank  of  New-  tj.  btarr,  2  Littell,  230;  Lovier  ?).  Gil- 
hurne,  8lN.  Y.  385;  37  Am.  Rep.  pin,  6  Dana,  321;  Gore  ».  Mastin,  66 
508.  N.  C.  371 ;    Ela  v.  Shepard,  32  N.  H. 

^Erskine   v.   Hohnbach,  14  Wall.  277;  Seekins  «.  Goodale,  61  Me.  400; 

613;    Underwood    «.  Robinson,   106  Livingston  «.  Smith,  5  Pet.  90;   Bird 

Mass.  296;    Booth  v.  Rees,  26  111.  4.5;  v.  Perkins,  33  Mich.  28;     Walker  v. 

Hill  ■«.   Figley,  25   111.  156;  State  ®.  Woods,     15     Cal.     60;     Mamlock  «. 

Foster,   10    Iowa,    435;     Walden  v.  White,  20  Id.  598;  Stevenson  t;.  Mc- 

Dudley,    49    Mo.   419;     Kirksey  v.  Lean,  5  Hump.  332;     Reams  «.  Mc- 

Dubose,  19  Ala.  43 ;  Lott  «.  Hubbard,  Nail,  9   Id.   542;    Day    v.  Bach,    87 

44  Ala.   593;     Fulton   v.   Ileaton,   1  N.  Y.  50;    Hines   v.  Chambers,    29 

Barb.  552;    Watson  «.  Watson,  9  Ct.  Minn.  7. 


THE    WRIT    TROTECTING    THE    OFFICEK. 


14o 


r.ned  to  tlie  defendant's  property.  When  thus  outside  tlie 
sphere  of  his  duty,  he  cannot  chiim  inviolability  because  of  the 
writ  in  his  hand.* 

A  valid  writ  is  no  protection  to  the  ofHcer  if  he  disturb  the 
lawful  possession  of  a  person  other  than  the  defendant,  or  attach 
property  that  is  not  legally  attachable. ^  Though  the  defendant 
may  have  been  duly  served  in  an  attachment  proceeding,  so 
that  citation  has  brought  the  personal  suit  into  being;  though 
the  affidavit  has  been  made  according  to  statute  and  bond  given; 
thongli  the  writ  has  been  issued  and  lodged  in  the  sheriff's, 
marshal's,  or  other  executive  official's  hands;  and  thongli  the 
plaintifi'  lias  given  instructions  and  pointed  out  attachable 
property,  there  is  not  yet  even  a  hypothetical  lien  created,  and 
the  defendant  may  sell  his  effects  and  third  persons  may  buy, 
with  perfect  impunity. ^  To  this  rule  there  are  exceptions, 
since,  in  some  of  the  States,  the  lien  becomes  operative  as  soon 
as  the  writ  is  placed  in  the  sheriff's  hands;  but  generally  it  is 
true  that  even    after  a  perfectly  valid  writ  has  been  issued,  "tlie 


i"Wambolcl  ».  Vick,  50  Wis.  456; 
Rotliei-mel  v.  Marr,  !)8  Pa.  St.  285; 
Hig]i  v:  Wilson,  2  Johns.  46;  Rincliey 
V.  Strylcer,  28  N.  Y.  45;  Marsli  v. 
Backus,  16  Barb.  483;  Tufts  «.  Mc- 
Clintock,  28  Me.  434;  Morse  v.  Hurd, 
17  N.  H'.  246;  Damon  ?;.  Bryant,  2 
Pick.  411;  Robinson  v.  Mansfield,  13 
Pick.  139;  Richardson  v.  Hall,  10  Md. 
399;  Rosenbury  v.  Angell,  6  Mich. 
508;  Sexey  B.  Adkinson,  34Cal.  346; 
Main  v.  Bell,  27  AVis.  517;  Heath  v. 
Keyes,  35  AVis.  608;  Perry  v.  Will- 
iams, 39  Wis.  339;  Williams  v.  Mor- 
gan, 50  Wis.  548;  Cook  v.  Hopper, 
23  Mich.  511. 

2  Cooper  V.  Newman,  45  N.  H.  339; 
Foss  V.  Stuart,  14  Me.  313;  Richards 
V.  Daggett,  4  Mass.  534;  Gibson  v. 
Jenney,  15  Id.  205;  Howard  v.  Will- 
iams, 2  Pick.  80;  Bean  v.  Hubbard,  4 
Cush.  85 ;  Lynd  v.  Pickett,  7  Minn. 
184;  Caldwell  v.  Arnold,  8  Id.  265; 
Woodbury  v.  Lon^  8  Pick.  543;  Ford 

10 


V.  Dyer,  26  Miss.  243;  Meade  v. 
Smith,  16  Ct.  346;  Sangster  v.  Com- 
monwealth, 17  Grattan,  124;  Van 
Pelt  V.  Littler,  14  Cal.  194 ;  Archer  v. 
Noble,  3  Me.  418;  Harris  v.  Hanson, 
11  Id.  241;  State  v.  Moore,  19  Mo. 
369;  Commonwealth  v.  Stockton,  5 
Monroe,  192;  People  v.  Schuyler,  4 
Com.  173;  Gibbs  v.  Chase,  10  Mass. 
125;  Miller  «.  Baker,  1  Met.  27; 
Morse  v.  Hurd,  17  N.  H.  246;  Paxton 
V.  Steckel,  2  Pa.  State,  93. 

3  Fitch  V.  AVaite,  5  Conn.  117 ;  Stock- 
ley  V.  Wadman,  1  Houston,  (Del.)  350 ; 
Tomlinson  v.  Stiles,  4  Dutch.  (N.  J.) 
201 ;  AVallace  v.  Forrest,  2  Harris  & 
McHenry,  (Md.)  261;  Crowninshield 
V.  Strobel,  2  Brev.  (S.  C.)  80.  Even  if 
the  defendant  has  sold  after  the  levy, 
the  sale  will  hold  good  against  a  pur- 
chaser at  an  attachment  sale,  if  the 
writ  was  void  for  any  cause.  O'Far- 
rell  V.  Heard,  22  Minn.  189. 


146  PROCESS. 

debtor  may  convej  and  deliver  liis  property  to  a  tliird  pei'son 
by  a  perfectly  hona  fide  transaction,  so  that  the  sheriff  cannot 
attach  it   as  the  property   of  the  defendant  except  at  his  peril. 

A  valid  writ  of  attachment  gives  no  authority  to  attach  and 
take  possession  of  pro]-»erty  of  the  defendant  which  is  lawfully 
in  the  hands  of  mortgagees.  Such  property  can  be  reached 
only  by  garnishment.  The  mortgagee  has  the  prior  lien;  and 
that  cannot  be  disturbed,  prejudiced  or  forestalled  by  attach- 
ment lien  of  later  date.  The  mortgagee  is  entitled  to  posses- 
sion rather  than  the  attaching  creditor.  If  mortgaged  chattels 
may  be  attached  under  any  peculiar  practice,  instead  of  being 
reached  by  garnishment,  as  under  the  general  rule,  the  offi- 
cer can  detain  them  only  so  long  as  may  be  necessary  to  take 
an  inventory  of  them;  he  cannot  permanently  dispossess  the 
mortgagee.  ^ 

If  mortgaged  chattels,  in  the  lawful  possession  of  mortg- 
agees, are  seized  as  the  property  of  the  mortgagor  who  is  the 
defendant  in  the  attachment  suit  in  which  such  seizure  is  made, 
it  has  been  held  that  the  officer  is  liable  to  the  mortirao:ees  as  a 
trespasser,  if  the  writ  is  invalid ;  that  the  writ  is  invalid  if  the 
court  issuing  it  has  no  jurisdiction;  and  that  there  can  be  no 
Jurisdiction  if  there  is  no  affidavit  made  in  accordance  w^ith 
statute;  and  that  to  be  in  accordance  with  statute  the  affiant 
must  swear  that  the  debt  sued  upon  is  due  if  that  is  required. 
It  was  held  that  the  officer,  executing  such  writ,  may  be  sued  in 
a  separate  action;  and,  though  he  be  the  marshal  of  a  federal 
district  acting  under  such  a  writ  issued  by  a  Circuit  Court  of 
the  United  States,  he  may  be  sued  by  the  mortgagees  in  a  State 
court  as  a  trespasser;  and  he  cannot  shield  himself  there  by 
the  writ  because  of  facial  validity,  nor  prove  in  defense  that  the 
property,  held  by  the  mortgagees,  belonged  to  the  defendant  in 
the  attachment  suit.^ 

On  the  other  hand  it  has  been  held  that  if  the  attachment 
writ  is  valid  upon  its  face  and  issued  by  a  court  of  general  juris- 
diction when  the  defendant  is  in  court,  it  will  protect  the  officer 

1  King  t).  Hubbell,  42  Mich.  597.  2  Matthews  10.  Densmore,  43  Mich. 

461. 


INDEMNITY    BOND.  147 

from  ar.j  collateral  attack  upon  him  as  a  trespasser  for  execut- 
ing it;  that  though  the  affidavit  may  not  have  been  made  as 
required  by  statute,  an  attachment  thereunder  is  not  void  but 
voidable,  made  under  a  writ  facially  valid  issued  by  such  a  court; 
that  marshals  are  court  officers,  bound  to  obey  the  court  and  to 
execute  whatever  writs,  apparently  legal,  may  be  put  into  their 
hands  for  execution;  in  fine,  that  the  officer  is  perfectly  protected 
by  such  writ  and  need  not  look  behind  it  for  its  authorization.  ^ 
This  conflict  of  oi3inion  turns  upon  a  question  of  jurisdiction 
— which  is  not  now  the  subject  in  hand.  Both  courts  doubtless 
agree  that  when  a  judicial  command  has  been  authoritatively 
given,  the  officer  is  bound  to  obey,  and  therefore  is  not  punisha- 
ble for  obedience.  Both  would  certainly  concur  in  the  conclu- 
sion that  the  marshal,  in  the  case  they  were  considering,  was 
under  the  ample  protection  of  the  writ  he  bore  if  lie  attached 
property  owned  and  possessed  by  the  attachment-defendant, 
lyrovided  they  could  first  agree  that  the  U.  S.  Circuit  Court  had 
jurisdiction  of  the  ancillary  suit. 

Sec.  5.    Indemnity  Bond. 

The  officer  to  whom  a  valid  writ  is  addressed  is  bound  to  use 
all  due  diligence  to  execute  it,  provided  he  can  do  so  without 
perpetrating  injustice  to  others  and  loss  to  himself.  He  is  not 
to  be  the  arbiter  of  the  possible  injustice,  but  he  is  the  best 
judge  as  to  whether  he  can  execute  his  trust  without  involving 
himself  in  a  law  suit  for  trespass.  If  he  has  reasonable  ground 
to  believe  that  the  property  which  the  attaching  creditor  has 
pointed  out  for  seizure  is  really  the  property  of  another  person 
than  the  debtor;  if  he  has  been  credibly  so  informed,  or  has 
been  notified  of  the  fact  by  a  claimant;  especially  if  the  prop- 
erty is  in  litigation  and  the  question  of  ownership  is  doubtful, 
he  may  require  a  bond  of  indemnity  from  the  plaintiff. 

The  attachment  is  to  be  effected  in  the  plaintiff's  interest 

not  in  that  of  the  officer;  he  has  provoked  the  proceeding  and 
caused  the  writ  to  issue;  he  has  sworn  to  the  defendant's  indebt- 
edness and  must  know  the  fact;  he  has  pointed  out  the  particu- 

»  Same  Case,  109  U.  S.  21G. 


148  PE0CES8. 

];ir  property  whicli   lie   wishes  the   slieriff  to  attach,  and  why 
should  he  not  protect  that  officer? 

The  duty  which  the  officer  is  ordered  to  perform  is  a  delicate 
one,  in  many  instances;  and  it  is  always  a  highly  responsible 
one.  It  involves  reparation  to  the  plaintiff  in  damages  for  any 
dereliction  by  which  he  fails  to  attach  property  and  canses  the 
plaintiff  loss  in  consequence.  If  he  does  not  request  the  attach- 
ing creditor  either  to  indemnify  him  or  to  point  out  property 
for  attachment,  he  is  yet  bound  to  execute  the  precept  with  dili- 
gence and  faithfulness,  and  is  responsible  for  his  own  faults 
resulting  in  failure. 

"When  a  plaintiff,  personally  or  through  his  attorney,  desig- 
nates what  goods  or  other  property  the  officer  must  seize,  he  is 
bound  to  protect  him  in  the  execution  of  such  instructions, 
and  may  be  made  to  indemnify  against  loss  resulting  to  the  offi- 
cer because  of  obedience  to  such  instrnctions.  In  such  case, 
there  is  an  implied  promise  of  indemnification. ^ 

If  the  sheriff  acts  on  his  own  responsibility  and  thus  causes 
loss  to  himself,  the  plaintiff  who  has  not  given  him  either  bond 
or  instructions  would  not  be  obliged  to  make  good  his  loss. 

It  is  the  right  of  the  person  charged  with  the  execution  of 
the  writ  to  demand  a  bond  of  indemnity  before  proceeding  in 
doubtful  cases.  2  Whether  there  is  express  authority  therefor 
by  statute  or  not,  the  common  law  gives  the  right.  ^  The  case 
is  like  that  of  a  seizure  under  a  Ji./ci.  where  the  right  to 
indemnity  is  from  the  common  law.  Attachment  is  a  prelimi- 
nary seizure  to  hold  the  property  till  judgment  can  be  obtained 
and  vend.  ex.  or  some  other  writ  of  sale  issued.  There  is 
therefore  as  much  reason  for  indemnity  in  the  latter  case  as  in 
the  former,  and  the  same  legal  principle  applies.* 

1  Gower  v.  Emery,  6  Shepley,  79;  levying:    Shaw  v.  Holmes,  4  Heisk. 

Ranlett  v.   Blodgett,  17   N.  H.   306;  692. 

Bond  V.  "Ward,  7  Mass.  126;  Humph-  ^  Smith  v.  Cicotte,  11  Mich.  383. 

reys  v.  Pratt,  2   Dow   &   Clark,  288;  ^  Chamberlain  v.   Beller,  18  N.  Y. 

Fletcher  «.  Harcott,  Hutton,  55 ;  Betts  118. 

r.  Gibbons,   2  Ad.  &.  El.  57;  Adam-  *  In  Shriver  v.  Harbaugh,  et  al.  37 

son  V.  Javvis,  4  Bing.  72.     In  Tenues-  Pa.  St.  401,  it  is  stated  that  the  slierilf 

see,  held  that  the  sheriir  cannot  de-  informed  the  attaching  plaiutitt"  that 

mand   a   bond  of  indemnity  before  he  required  a  bond  of  indemnity  for 


INDEMNITY    BOND.  149 

If  the  officer  finds  designated  property  in  tlie  possession  of 
another  tlian  the  debtor,  held  under  a  chiim  of  title;  or  learns 
that  it  is  in  possession  of  a  mortgagee,  however  doubtful  may 
be  the  possessor's  right  to  hold,  an  indemnity  bond  may  reason- 
ably and  judiciously  be  demanded  of  the  plaintiff  before  the 
execution  of  the  writ  upon  such  -property.  And.  he  may,  when 
indemnity  has  been  demanded,  delay  the  execution  till  the  bond 
be  executed,  and  refuse  to  act  altogether,  if  it  be  refused.  If 
indemnity  has  been  promised,  there  would  seem  to  be  an  implied 
agreement  that  the  officer  need  not  seize  until  protected,  i 

While  an  officer  is  not  obliged  to  execute  the  writ  upon 
property  to  which  the  title  of  the  defendant  is  doubtful,  with- 
out being  reasonably  indemnified,  he  cannot  demand  a  bond  of 
indemnity  in  a  sum  more  than  sufficient  to  secure  him  against 
loss;  and  he  cannot  release  the  property,  where  it  has  been 
rightly  attached,  without  rendering  himself  liable  to  the  attach- 
ing creditor.  2 

A  sheriff  who  has  instructions  to  attach  certain  property 
pointed  out  by  the  attaching  creditor,  cannot  escape  the  respon- 
sibilit}^  of  executing  the  writ  on  the  ground  that  he  has  been 
furnished  no  indemnity  bond,  when  he  has  not  asked  for  any.  ^ 
It  is  his  duty  to  go  on  and  seize,  and  obey  the  plaintiff"'s  in- 
structions as  far  as  practicable;  and  it  is  not  a  sufficient  excuse 
for  default  that  he  afterwards  heard  and  erroneously  believed 
that  such  instructions  woidd  expose  himself  to  an  action,  and 
would  have  resulted  in  no  good  to  the  plaintiff'.  But  if  his 
subsequently  received  information  should  prove  true,  he  might 
reasonably  ask  indemnity  after  first  undertaking  to  act  without 
any  express  promise,  being,  in  such  case,  answerable  to  the 
plaintiff  only  for  such  actual  damage  as  may  have  been  incurred 

the  reason   that  the   garnishee  had  bailee,  when  the  indemnity  had  been 

given  notice  that  the  goods  in  his  refused.     See  Rothermel  v.  Marr,  98 

possession  were  claimed  by  another  Pa.  St.  285. 

man  than  the  defendant.    The  plain-  '  Smith  v.  Cicotte,  11  Mich.  386. 

lifT  refused  to  give  the  bond,  and  the  ^  Wadsworth  &  Co.  v.  Walliker,  51 

sheritt'  notified  the  garnishee  that  he  Iowa,  605. 

had  uo  claim  on  the  goods.     It  was  *  Perkins  v.  Pitman,  et  al.  34  N.  H. 

held   that  the  sheriff  was  not  liable  261. 

foi'  discharging  the  garnishee,  as  his 


150  PEOCESS. 

by  the  latter  by  reason  of  tlie  delay.  The  sheriff,  lia\'iiig  niuler- 
taken  to  attach  specified  property,  is  liable  for  not  doing  so, 
unless  he  can  show  that  he  could  not  lawfully  follpw  the  credi- 
tor's instructions.  To  admit  the  excuse  that  he  was  deterred 
by  subsequent  information,  etc.,  would  be  dangerous  and  con- 
trary to  authority.  1 

But  if  a  thii'd  person  has  made  a  contest  and  claims  property 
as  his,  after  it  has  been  attached  on  mesne  process  as  that  of  the 
defendant  in  an  attachment  suit,  the  sheriff  may  demand  indem- 
nity before  proceeding  further.  If  there  are  several  creditors, 
some  of  whom  indemnify  the  officer  when  requested  while 
others  do  not,  the  former  will  be  the  beneficiaries  of  his  action 
rather  than  the  latter.  ^ 

When  the  officer  has  been  furnished  with  an  indemnif3'ing 
bond,  he  must  yet  comply  with  all  of  his  own  obligations  before 
he  can  avail  himself  of  the  security  it  gives.  If  property  has 
a  rival  claimant  thouo^h  to  be  attached  as  belonging  to  the 
defendant,  and  the  bond  given  to  indemnify  the  sheriff"  contains 
the  stipulation  that  he  should  inform  the  attaching  creditor  in 
case  of  any  suit,  he  cannot  maintain  any  action  on  the  bond  for 
loss  that  might  have  been  prevented  had  he  complied  with  the 
condition,  JSTor  could  he  recover  of  the  creditor  upon  an  im- 
plied promise,  inferred  from  the  instructions  to  attach  desig- 
nated property,  for  the  reason  that  the  stipulation  would  preclude 
such  an  implication. ^ 

Notwithstanding  the  indemnity  bond,  the  plaintiff  is  not 
entitled  to  an  order  on  the  sheriff  to  pay  money  into  court,  when 
there  is  a  suit,  by  a  claimant  of  the  fund,  still  pending,  if  by  the 
terms  of  the  bond  or  other  agreement  the  sheriff  had  permission 
to  retain  the  money  for  a  reasonable  time  as  additional  security. ^ 

1  Ranlett  v.  Bloclgett,  17  N.  H.  304 ;  178 :  having  reference  to  sale,  and  the 
Ball  V.  Badger,  6  N.  H.405;  Marshall  rights  of  creditors  to  proceeds,  etc. 
t.  Hosmer,  4  Mass.  68.  ^  Preston  v.  Yates,  24  Hun.  584. 

2  Smith  ®.  Osgood   et  al.  46  N.  H.  *  Scherr  v.  LiUle,  GO  Cal.  614. 


WHAT    IS   ATTACH  ABLE.  151 


CIIAPTEK  Y. 

ATTACHING. 

§  1.    What  is  Attachable.  §  5.  Choses  in  Action. 

3.     Property  Held  by  Third  Per-          6.  Method  of  Seizing, 

sons.  7.  Time  of  Seizing. 

3.  Property  Consigned.  8.  Wrongful  Levy. 

4.  Exemption. 

See.  1.    What  is  Attachable. 

The  slieriff,  armed  with  the  writ,  and  commanded  to  attach 
sometliing  belonging  to  the  defendant  which  is  capable  of  bear- 
ing a  lien  and  susceptible  of  becoming  the  res  against  which 
the  attachment  proceeding  is  directed,  must  now  select  what  he 
is  to  take  into  his  possession.  He  is  obliged  to  make  selection 
when  the  defendant  possesses  and  owns  more  property  than  is 
sufficient  to  constitute  the  res  of  the  suit,  unless  the  writ  is 
directed  against  specific  property,  when  he  can  seize  only  that. 
The  command  of  the  court,  in  the  latter  case,  is  for  the  attach- 
ment of  the  particular  thing  which  is  described  in  the  affidavit 
and  the  writ:  so  he  has  no  choice  between  that  and  other  prop- 
erty when  about  to  execute  the  attachment.  ^  Ordinarily  the 
command  is  general  as  to  the  defendant's  property,  and  the 
sheriff  has  no  guide  in  making  his  selection,  except  that  afforded 
by  the  law  and  the  instructions  of  the  plaintiff.  He  should 
regard  the  directions  of  the  plaintiff  when  they  are  within  the 
law,  especially  if  he  has  been  secured  by  an  indemnifying  bond. 
He  is  not,  however,  legally  bound  to  do  so,  when  the  instruc- 
tions are  obviously  unreasonable,  evidently  intended  to  harass 
the  defendant  and  likely  to  result  in  a  damage  suit  against  the 
officer,  if  there  is  sufficient  other  property  liable  to  the  attach- 
ment which  may  be  readily  secured  without  any  embarrassing 

>  Reid  V.  Tucker,  56  Ga.  278. 


152  ATTACHING. 

results.  Though  protected  from  dainnp^e  by  the  bond  of  in- 
demnity, the  sheriff  is  not,  under  siicli  circumstances,  obliged 
to  subject  himself  to  the  annoyances  of  personal  litigation. 

It  is  not  generally  deemed  the  duty  of  the  attachment  defend- 
ant to  point  out  property  to  be  attached,  or  to  give  the  names 
of  his  debtors  that  they  may  be  garnished,  i  It  is  rather  a 
privilege  than  a  duty,  when  property  is  about  to  be  seized  in 
execution  of  a  judgment,  for  the  debtor  to  be  allowed  to  desig- 
nate what  property  he  would  prefer  to  have  taken  under  the 
writ.  It  is  his  duty  to  pay  his  debts,  and  to  satisfy  the  judg- 
ment against  him,  and  to  facilitate  the  officer;  but  when  there 
is  no  judgment,  and  presumably  no  indebtedness,  (since  he  has 
put  or  may  put  the  charge  at  issue,)  there  is  no  reason  for  his 
pointing  out  property  to  be  attached,  or  pointing  out  his  own 
debtors  to  be  garnished. 

There  is  great  uniformity  in  the  statutes  as  to  what  is  attach- 
able. The  real  and  personal  property  of  the  defendant  is  liable 
in  every  State  and  Territory.  His  credits  are  everywhere  at- 
tachable; and  many  of  the  statutes  expressly  enumerate  among 
liable  property,  his  stocks  held  in  incorporated  companies,  lega- 
cies, interests  in  decedents'  estates  and  dividends  in  tlie  funds 
of  insolvent  estates;  wliile  some  declare  that  evidences  of  debts 
due  him  in  the  form  of  notes  and  bonds  and  book  accounts,  etc., 
are  liable  to  attachment.  Tliose  statutes  which  do  not  expressly 
mention  stocks  and  like  incorporeal  property,  generalh^  include 
them  in  comprehensive  provisions,  such  as  authorize  the  attach- 
ment of  all  species  of  property,  real  or  personal. 

Notes,  bonds,  etc.,  liowever,  cannot  be  deemed  as  compre- 
hended in  a  general    authorization    for    the    attachment  of   all 

^  In    Connecticut,    it    is     deemed  attacliment,  whetlier  the  defendant 

fraud  on  the   part  of  the  debtor  who  is  within  the  State  or  a  non-resident, 

refuses  to  disclose  such  facts,  giving  If  a  corporation  does  business  in  one 

rise  to  action  on  the  case  and  attach-  town  and  is  located   in  another,  pro- 

ment  of  his  body,     Feary   v.  Hotch-  cess  of  foreign   attachment  may  be 

kiss,  46   Ct.   266.     If  the   defendant  served   upon   it  by  leaving  a  copy 

discloses  the   names  of  his  debtors  with  any  of  its   agents   or    clerks  in 

and    the   amounts    due,    the    plain-  the  town  where    it    does    business, 

tiiT's  process  against   them   as  garn-  Adams  v.  Willimantic  Linen  Co,  46 

ishees  is  called  a  factorizing  process,  Ct.  820. 
and  the  attachment  is  called  a  foreign 


WHAT    IS    ATTACHABLE. 


153 


property,  since  evidences  of  debt  are  not  property,  and  there- 
fore cannot  constitute  the  res  of  the  ancilhiry  proceeding  in  an 
attachment  suit.  The  seizure  of  a  p]-omissory  note,  without 
the  garnishment  of  the  obligor  and  tlie  attachment  of  the  credit 
in  his  hands,  would  bring  into  the  sherifi''s  possession  nothing 
that  could  be  made  the  basis  of  the  attachment  lien.  Those 
statutes  which  authorize  such  a  seizure  scarcely  mar  the  general 
uniformity  above  mentioned;  for,  with  the  evidence  of  a  credit 
due  the  defendant  taken  into  the  officer's  hands,  there  must  yet 
be  procedure  to  reach  the  third  person  holding  the  credit:  and 
all  the  States  allow  this  by  means  of  garnishment  or  the  trus- 
tee process. 

"What  the  debtor  owns  may  be  either  in  his  own  possession  or 
in  the  hands  of  third  persons.  It  is  essential  to  direct-attach- 
ment that  the  property  should  b^  both  owned  and  possessed  by 
the  debtor.  His  legal  dispossession  by  the  sheriff,  so  that  the 
latter,  under  the  court,  gains  the  control  of  the  property,  is 
necessary  to  its  valid  attachment;  and  therefore  the  debtor  must 
first  have  the  custody  in  the  capacity  of  owner  in  order  that 
such  dispossession  may  be  legally  effected. 

Attachment  of  property  owned  by  the  defendant  but  held  by 
others,  and  of  credits  due  him  from  others,  is  effected  by  means 
of  garnishment,  which  will  be  hereafter  treated. 

Property  in  the  possession  of  the  debtor  cannot  be  attached 
as  his  if  he  does  not  own  it.i  What  he  holds  in  trust  as  guar- 
dian, executor,  administrator,  agent  or  in  any  official,  financial 
or  other  capacity  cannot  be  attached  and  executed  for  his  debts. 

If  he  has  set  apart  any  of  his  own  property  or  funds  to  pay 
a  particular  debt,  the  general  attachability  of  that  which  is  thus 
devoted  depends  upon  the  question  whether  he  retains  control 
over  it.  If  it  has  been  put  into  the  hands  of  a  third  person  for 
the  use  of  a  particular  creditor,  beyond  power  of  revocation,  no 
other  creditor  can  attach  it  unless  it  exceeds  the  amount  neces- 
sary to  effect  the  purpose  of  the  deposit;  for  the  beneficiary 
would  have  a  lien  upon  it  to  that  amount.  At  any  rate,  it  could 
only  be  attached  in  the  hands  of  the  depositary  subject  to  the 

1  But   see   Shannon    v.    Blum,   GO  Miss.  828. 


154  ATTACHING. 

lien.  It  lias  been  licld  tliat  funds  set  apart  to  pay  a  particular 
debt  falling  due,  in  the  hands  of  an  agent  for  that  purpose, 
under  such  circumstances  as  to  constitute  a  trust  fund  beyond 
the  control  of  the  principal,  are  not  attachable  for  his  debts, 
though  his  creditors  have  had  no  notice  of  such  trust.i  This 
disposition  of  a  fund  is  distinguishable  from  that  of  its  deposit 
with  a  clerk  of  court  as  security  in  place  of  an  undertaking 
bond.  In  the  latter  case,  the  fund  remains  the  property  of  the 
defendant  without  any  certainty  tliat  any  part  of  it  will  have 
to  be  used  to  make  good  his  obligation;  and  the  fund  is  liable 
to  attachment,^   subject  to  the  lien  upon  it. 

These  illustrations  belong  rather  to  the  subject  of  attach- 
ment in  the  hands  of  third  persons  than  to  direct  attachment 
which  is  now  under  consideration.  Tliey  are  mentioned  here 
to  show  that  the  debtor  mustliave  both  ownership  and  control 
in  order  to  render  proj)erty  attachable.  Even  were  he  to  retain 
an  article  of  property  in  his  own  hands,  yet  create  a  lien  upon 
it  in  favor  of  a  particular  creditor,  (unless  insolvent  and  grant- 
ing the  lien  by  way  of  giving  fraudulent  preference  to  such 
creditor,)  such  article  could  not  be  attached  by  any  other  credi- 
tor to  the  prejudice  of  the  lien.  It  could  only  be  taken  subject 
to  the  lien.  3 

What  has  been  said  respecting  the  Joinder  of  ownership  and 
possession  must  be  qualified  so  far  as  fraudulent  transfers  are 
concerned.  The  simulated  sale  of  land  or  other  property, 
though  accompanied  by  delivery,  would  not  prevent  its  lawful 
attachment  as  the  property  of  the  fraudulent  grantor.  Even 
though  he  should  die  before  the  debt  against  him  should  be- 
come due,  an  attachment  suit  to  enforce  it  might  be  brought,  on 
proper  grounds,  against  his  administrator  or  other  legal  repre- 
sentative of  his  estate,   and    the    fraudulently  transferred  prop- 

1  E.  L.  «&  M.  Works  v.  Kelley,  88  of   the    mortgagor,    if   he  pays  the 
N.  Y.  234.  mortgagee  in  ten   days;  or,  he   may 

2  Dunlop  t).  Pat.   F.  Ins.  Co.  74  N.  attach  and   summon   the   mortgagee 
Y.  145.  as  trustee.     Flanagan   v.   Cutler,  121 

3Goulding«.  Hair,  133  Mass.  78:  Mass.  9G;  Boyntou  ».  Warren,  99  Id. 

There  are  two   modes   in  Massacliu-  172;  Hay  ward  ii.  Ce  trge,   13   Allen, 

setts:  (1.)    The  creditor  may  attach  G6;  Martini).  Bayley,  1  Id.  381. 
mortgaged  property  still  in  the  hands 


WHAT    IS    ATTACHABLE.  155 

erty  niiglit  be  attaclicd,  tlioiigh  the  grantee  miglit  be  in  pos- 
session.^  The  reason  is  that  the  debtor  would  not  cease  to  own 
by  reason  of  his  wrongful  act;  nor  would  his  right  of  posses- 
sion be  lost,  so  far  as  interested  third  persons  are  concerned. 

Ownership  and  legal  possession  by  the  defendant  are  the 
requisites.  If  some  third  person  has  the  legal  and  actual 
possession,  the  property  can  only  be  reached  by  the  process  of 
garnishment. 

Assignment  must  be  valid  as  to  the  attaching  creditor  to 
preclude  him  from  seizing  property  as  that  of  the  assignor. 
Land  transferred  in  a  State  other  than  that  in  which  it  is  situ- 
ated would  be  validly  transferred  as  to  one  who  has  assented  to 
it  by  taking  a  part  of  the  price.* 

All  that  is  attachable  as  the  right,  title  and  interest  of  a 
member  in  a  firm,  is  his  share  of  the  surplus  after  the  debts  of 
the  partnership  are  paid.^  If  the  lirm  is  insolvent,  nothing  is 
attached  by  attaching  the  interest  of  a  member;  and  a  purchaser 
of  the  interest  of  such  member,  at  a  sheriff's  sale,  would  get 
nothing.  One  partner  can  legally  sell  partnership  goods  to  a 
customer,  in  his  line  of  trade,  or  convey  them  to  a  creditor  of 
the  firm  in  payment,  without  consulting  the  other  partner  or 
partners,  even  when  the  firm  is  insolvent,  and  though  preference 
be  thus  given  to  one  creditor  over  another,  (where  there  is  no 
statuto-ry  inhibition  of  such  a  preference;) — but  his  creditor 
cannot  successfully  attach  as  his  anything  more  than  his  share 
of  the  assets  remaining  after  the  payment  of  the  debts  of  the 
firn),  as  above  stated. 

It  is  trespass  to  attach  and  remove  partnei'ship  goods  on 
mesne  process  against  one  partner  for  his  personal  debt, — 
it  is  hclrl,  but  this  is  not  the  case  everywhere.* 

1  Pulsifer  v.  Watermau,  73  Me.  ^  gt^ats  «.  Bristow,  73  N.  Y.  3G4; 
233.  Peck  v.   Fisher,   7   Cush.   380;    Mc 

2  Chafee  v.  Fourth  National  Bank,  Henry  v.  Cawthorn,  4  Heisk.  (Tenn.) 
71  Me.  514.      A  general  assignment  508. 

by  a  debtor  whose  debts  do  not   ex-  *  Sanborn  «.  Koyce,  132  Mass.  594. 

ceed  $oOO,  does  not  dissolve   au   at-  The  court  say  that  the   question  be- 

taclimeut.  in  Maine:  Collins  d.  Cluise,  fore  them  had  never  been  decided  in 

71  Me.  434;  Insolvent  Act  of  1878,  §  Mass.,  though  subjected  to  much  dis- 

59,  cussion  and  coutlicting  opinion  else- 


156  ATTACHING. 

The  non-residence  of  a  co-debtor  is  no  ground  for  attaching 
the  resident  debtor's  property  ;i  nor  that  of  a  co-contractor  for 
attaching  both  contractors'  property;^  but  the  residence  of 
one  contractor  within  the  State  will  not  shield  the  property 
or  interests  of  his  co-contractor,  living  out  of  the  State,  from 
attachment.  3 

Whether  partnership  effects  are  attachable  in  a  suit  against 
one  member  of  the  firm,  who  is  a  non-resident,  upon  a  debt 
contracted  by  the  partnership,  depends  upon  the  character  of 
the  obligation:  whether  it  is  joint  or  joint  and  several.  If 
the  obligation  sued  upon  is  joint,  partnership  effects  are  not 
attachable  in  such  suit;'*  but  if  it  is  joint  and  several,  the  rule 
is  otherwise.  5  It  is  joint  by  the  law  of  partnership  without 
statutory  modification:  so  all  the  partners  must  be  sued  in 
order  to  attach  property  of  the  firm. 

In  a  suit  against  two  joint-debtors,  attachment  will  hold  only 
when  the  affidavit  is  sufficient  against  both.^  It  has  been  held 
that  if  both  are  residing  out  of  the  State,  and  the  creditor 
finds  property  of  one  of  them  within  the  State,  he  may  attach 
it  as  that  of  a  non-resident  debtor  without  mentioning  the 
co-obligor.' 

Though  a  partnership  may  have  been  domiciliated  in  a  State, 
and  there  liable  to  be  sued  on  ordinary  process,  yet,  upon  its 
dissolution,  its  assets  may  be  attached  for  a  debt  of  the  firm,  if 

where.     And  they  cite  the  following  ^  JefTerson  County  v.  Swain,  5  Kan. 

authorities,  in  support,    as  "more  in  376. 

accordance  with  just    legal   princi-  *  Wiley  ®.  Sledge,  8  Ga.  532;  Wal- 

ples"  than  those  which  are   opposed  lace  v.  Galloway,  5  Coldw.   (Tenn.) 

to  their  proposition:   Bank  v.   Car-  510;  Barber  ®.  Robeson,   15  N.  J.  L. 

ronton  R.  11.  11  Wall.  624-8-9;  Crop-  s  Green  v.  Pyne,  1  Ala.  235;  Conk- 

per  «.  Coburn,  2  Curtis,  465;  Burnell  lin  ®.  Harris,  5   Id.   213.     See    Chip- 

V.  Hunt,  5  Jur.  650 ;  Garvin  ®.  Paul,  man's  case,  14  Johns.  (N.  Y.)   217 ; 

47  N.  H.  158;   Darborrow's  Appeal,  Smith's  case,  16  Id.  102;  Mersereau  «. 

84  Pa.  St.  404;  Haynes  v.   Knowles,  Norton,    15     Id.     179;     Bobbins    v. 

36  Mich.  407;  Levy  v.  Cowan,  27  La.  Cooper,  6  Johns.    Ch.    186;  Mills  v. 

Ann.  5ri6;  Post,  pp.  524-5.  Brown,  2  Met.  (Ky.)  404. 

1  Mills  B.  Brown,  2  Met.  (Ky.)  404;  ^  Hamilton    ®.  Knight,   1    Blackf. 
Duncan  v.  Headley,  4  Bush.  45.  25;  Bartle  v.  Coleman,  6  Wheat.  475. 

2  Taylor  v.  McDonald,  4  Ohio,  149.  '  Dobbs  v.  The  Justices,  17  Ga.  624. 


WHAT    IS    ArTACKABLE.  l57 

those  lately  composing  it  are  non-residents,  provided  they  at'e 
still  the  owners  of  the  assets,  i 

If  one  partner  resides  in  the  State,  the  non-residence  of  his 
co-partner  is  no  gronnd  for  an  attachment  Lill  in  chancery 
against  both  partners  and  against  the  effects  of  botli.^  If  one 
partner  lias  absconded,  attachment  wonld  hold  against  his  inter- 
est only.  3  If  all  the  partners  of  a  iirm  have  absconded,  attach- 
ment lies  against  the  property  of  the  HrrnJ 

In  a  suit  against  an  insolvent  firm,  the  interest  therein  of  an 
absconding  partner  was  attached;  and  the  attachment  was  at- 
tacked on  the  gronnd  that  the  absconding  partner  had  no 
attachable  interest.  The  court  refused  to  vacate  the  attachment 
on  that  ground.  5  Of  course  the  defendant  had  no  cause  to 
attack  the  proceeding  if  nothing  of  his  had  been  molested. 

A  debtor's  property  is  none  the  less  liable  for  his  debts  by 
reason  of  its  being  a  part  of  something  held  in  common.  If 
the  thing  so  held  is  indivisible,  the  part  owned  by  the  defend- 
ant may  be  levied  upon  as  an  undivided  interest.  If  it  is 
divisible,  the  officer  would  be  obliged  so  to  make  the  levy, 
unless  the  defendant  and  the  other  owners  in  common  should 
consent  to  a  separation  of  the  seizable  portion.  Though  part- 
nerships, particularly  commercial  partnerships,  are  governed  by 
usages  peculiar  to  themselves,  in  some  respects,  with  regard  to 
the  attachment  of  a  partner's  interest  in  a  firm,  the  interest  of 
the  defendant  in  property  held  in  common  may  readily  be 
reached  by  lan  officer  in  executing  a  writ  of  attachment.  ^ 

In  making  the  levy  on  the  defendant's  part  of  intermino-led 
property,  it  may  be  necessary  to  take  and  detain  the  whole  for  a 
reasonable  time.  The  inconvenience  and  even  loss  that  may  thus 
occur  to  the  joint  owners  with  tlie  defendant  are  incident  to  the 

1  Lobdell  V.  Bushnell,   24  La.  Ann.  *  Leach  v.  Cook,  10  Vt.  239. 

295.     In   Indiana  it  was   held   that  ^  Buckingham  v.  Swezey,  25  Hun. 

when  the  suit  is   against  a  partner-  84. 

ship  composed  of  non-residents,  their  ^  Carter  v.   Jarvis,  9  Johns.    143; 

property  is  attachable:     Voorhies  v.  Gall  v.  Hiuton,  7  Abb.  Pr.  120;  Wal- 

Hoagland,  6  Blackf.  232.  ker  «.  Fitts,  24  Pick.    191;Budding- 

2  Wallace  ■;;.  Gallowaj^  5  Coklw.  ton  ^i.  Stewart,  14  Ct.  404;  Marioft  c. 
(Tenn.)  510.  Faxon,  20  Id.  486. 

8Bogart  V.  Dart,  25  Hun.  395. 


luQ  ATTACHING. 

4 

attacliment,  and  ordinarily  neitlier  the  officer  nor  tlie  attacliing 
creditor  is  pecniiiarily  responsible  therefor,  i  If  morto-ai^^ed 
chattels  are  attachable,  the  attachment  must  be  laid  in  the  hands 
of  the  mortgagees;  yet  the  otHcer  may  take  and  temporarily 
detain  them  for  the  purpose  of  making  an  inventory. ^  The 
attachment  is  subject  to  the  lien,  yet  the  mortgagees  retain  the 
property  for  the  sheriff. 

Whether  a  married  woman's  property  may  be  attached, 
depends  upon  the  character  in  which  she  holds  it.  If  she  is 
doing  business  as  a  sole  trader,  her  property  is  liable  for  the 
debts  which  she  contracts.  When  she  does  business  on  her 
separate  account,  and  her  property  has  been  legally  set  apart 
from  that  of  her  husband,  and  this  separation  of  business  and 
property  is  made  known  to  the  public  by  public  records,  that 
which  belongs  to  her  or  is  earned  by  her,  ought  not  to  be  liable 
to  attachment  or  execution  for  her  husband's  debts.  But,  being 
a  married  woman,  she  is  presumed  to  be  doing  business  under 
her  husband's  directi.m,  and  what  she  has  and  what  she  makes  is 
presumably  liable  for  the  husband's  debts,  unless  she  has  statute 
protection  or  the  presumption  is  removed   in  some  legal  way.' 

When  both  husband  and  wife  are  non-residents,  and  the 
action  is  against  both,  attachment  may  lie.*  And  because  her 
status  as  to  place  is  governed  by   that  of  her  husband,   she  is 

'Reed -w.  Howard,  2  Met.  36;  King  ing  on   separate  business,   includes 

c.  Hubbell,  42  Mich.  597;  Sibley  ■».  farming  as  well  as  trading:    Snow -u. 

Fernie,  22  La.  Ann.  163 ;  Lawrence  ?;.  Sheldon,  126  Mass.  332;  Chapman  v. 

Buruham,  4  Nev.  361;  Remingtons.  Foster,  6  Allen,   136;  Feran   v.  Ru- 

Cady,    10   Ct.  44.     See    Melville  v.  dolphsen,  106  Mass.  471.     See  Proper 

Brown,  15  Mass.  82.  v.  Cobb,  104  Mass.  589.     It  includes 

2  King  V.  Hubbell,  42  Mich.  597.  keeping  a  boarding  house ;  and  debts 

3  In  Massachusetts,  a  married  wo-  due  to  her  for  board  may  be  attached 
man,  doing  business  on  her  own  ac-  by  her  husband's  creditors,  if  she 
count,  must  file  a  certificate  of  the  has  not  filed  the  certificate :  Harnden 
fact  with  the  town  clerk,  in  order  to  v.  Gould,  126  Mass.  411 ;  Dawes  v. 
avail  herself  of  the  statute  there,  Rodier,  125  Mass.  421.  Insurance 
which  exempts  the  property  of  such  policy  in  favor  of  wife:  Troy  v.  Sar- 
from  liability  for  the  husband's  debts.  geant,  132  Mass.  408. 

Act  of  1862,  c.  198,  §1.     Chapman®.  *  In  Alabama,  under  the   Act    of 

Briggs,  11   Allen,  546.     Held  appli-  1846,  to  subject  the  wife's  separate 

cable  to  personal  property  only :  Ban-  estate  to   the   satisfaction  of  a  debt 

croft  V.  Curtis,  108  JMass.  47.     Carry-  contracted   by  her  before  marriage, 


PKOPEETT    HELD    BY    TIIIKD    TEKSONS. 


159 


deemed  to  reside  in  the  State  of  Ins  residence,  and  her  property 
is  amenable  to  attachment  as  that  of  a  non-resident  when  the 
suit  is  against  both  her  and  him,  though  slie  may  actually  live 
in  the  State  where  the  suit  is  instituted  and  the  attachment 
sued  out.i 

Sec.  2.    Property  Held  by  Third  Persona. 

Property  of  the  defendant,  lawfully  in  the  possession  of 
third  persons,  though  it  may  be  subject  to  garnishment,  cannot 
be  actually  seized  by  the  sheriff  under  a  writ  of  attachment, 
and  taken  from  such  persons.  Under  statute  authorization, 
some  such  j^i'operty  may  be  temporarily  taken  for  the  purpose 
of  making  an  inventory,  or  of  separating  it  from  other  attach- 
able things  which  the  third  possessor  does  not  claim  to  hold, 
but  there  can  be  no  detention  of  such  property  to  await  the 
judgment  in  the  attachment  suit.  And  whatever  is  lawfully  in 
the  possession  of  a  lien-holder  cannot  be  attached  unless  the 
lien  be  first  removed  by  payment  or  otherwise.  ^ 

The  attaching  creditor  cannot  dispossess  third  persons  of  their 
possession  for  the  same  reason  that  the  debtor  cannot;  he 
acquires   no    greater  right    to    take   property  under  his  writ, 


though  the  estate  was  secured  to  her 
by  ante'-uuptial  contract.  Crocker  v. 
Clements,  23  Aha.  296. 

1  Baldwin  v.  Flagg,  43  N.  J.  L.  495 ; 
Hackettstown  Bank  v.  Mitchell,  28 
N.  J.  L.  516 ;  Hunt  v.  Hunt,  72  N.  Y. 
217;  Greene  v.  Greene,  11  Pick.  410; 
Koss  i;.  Edwards,  52  Ga.  24:  Held 
that  attachment  does  not  lie  against 
a  lunatic  and  his  committee,  though 
non-residents. 

2  Williams  v.  Morgan,  50  Wis.  548; 
Perryy.  Williams,  39  Wis.  339;  Mc- 
Neill V.  Glass,  1  Martin.  N.  S.  (La.) 
261;  Skillman  v.  Bethany,  2  Id.  104; 
Lambeth  «.  Turnbull,  5  Rob.  (La.) 
264;  Carpenter  v.  Dresser,  72  Me. 
377 ;  Brownwell  v.  Carnley,  3  Duer, 
9;  Stearns  v.  Dean,  129  Mass.  139; 


Schepler  v.  Garriscan,  2  Bay,  224; 
Mitchell  V.  Byrne,  6  Rich.  171; 
Thompson  v.  Rose,  16  Ct.  71;  De 
Wolf  V.  Dearborn,  4  Pick.  466 ;  Ro- 
dega  V.  Perkerson,  60  Ga.  516;  Wolfe 
V.  Crawford,  54  Miss.  514;  Townsend 
V.  Newell,  14  Pick.  332 ;  Robinson  v. 
Mansfield,  13  Pick.  139;  Picquet  v. 
Swan,  4  Mason,  443;  Haven  v.  Low, 
2  N.  H.  13 ;  Morse  v.  Hurd,  17  N.  H. 
246 ;  Badlam  v.  Tucker,  1  Pick.  389 ; 
Sargent  «.  Carr,  12  Me.  396;  Henry 
V.  Quackenbush,  48  Mich.  415;  Lyle 
?).  Barker,  5  Bin.  457;  Moore  v.  Mur- 
dock,  26  Cal.  514;  Rix  &  Statibrd  v. 
Silknitter,  57  Iowa,  265 ;  Seymour  v. 
Newton,  105  Mass.  272;  Inslee  v. 
Lane,  57  N.  H.  454. 


160  ATTACHING. 

tlirough  the  officer,  than  the    defendant    lias    in   his    personal 
capacity.^ 

If  there  is  a  question  whether  the  ownership  and  rightful 
possession  is  in  the  vendor  or  vendee,  the  attaching  creditor's 
right  to  seize  and  take  possession  depends,  of  course,  upon  the 
settlement  of  that  question  in  any  given  case.  If  the  vendor 
is  his  debtor  against  wl»om  he  proceeds  in  an  attachment  suit, 
the  property  sold  cannot  be  attached  after  actual  or  constructive 
delivery  to  the  vendee.  If  the  vendee  is  the  debtor  of  the 
attaching  creditor,  the  property  sold  cannot  be  attached  in  a 
suit  against  that  debtor  unless  he  has  acquired  ownership  with 
the  right  of  possession.  Goods  in  transitu  afford  illustrations 
of  such  questions:  the  attachability  of  property  always  turning 
upon  the  right  of  possession  on  the  part  of  the  debtor  in  the 
attachment  suit. 2  Even  if  there  has  been  delivery  of  23roperty 
to  the  vendee,  or  agreement  to  sell  when  tliere  has  been  no 
delivery,  it  is  not  attachable  as  his  while  some  condition  stands 
unperformed,  the  doing  of  which  is  essential  to  his  title. ^ 

Property  not  owned  but  held  by  a  tenant,  lessee  or  mere  bor- 
rower cannot  be  attached  under  a  writ  directed  a^jainst  the 
property  of  the  person  thus  temporarily  having  possession.'* 
This  is  too  plain  for  comment;  but  the  facts  proved  in  suits 
with  respect  to  peculiar  contracts  between  landlords  and  tenants, 
lenders  and  borrowers,  etc.,  are  often  complicated,  and  of  such 
character  as  to  throw  the  real  ownership  into  doubt.  One  can- 
not anticipate  such  complications  so  as  to  subject  them  to  any 
more  definite  rule  than  that  broadly  given  in  the  first  sentence 
of  this  paragraph.  And  it  would  hardly  be  profitable  to  collate 
cases  in  which,   upon  different  states   of  facts,  the  possessing 

1  Rix  «&  Stafford  v.  Silknitter,  57  ^  Robinson  v.  Mansfield,  13  Pick. 
Iowa,  265;  Steplienson  «.  Walden,  139;  Townsend  «.  Newell,  14  Id.  333; 
24  Iowa,  84;  Oliver  v.  Lake,  3  La.  McFarland  «.  Farmer,  42N.  H,  386; 
Ann.  78;  Houghton  ?;.  Davenport,  74  Buckmaster  v.  Smith,  22  Vt.  203; 
Me.  590.  Woodbury  v.  Long,  8  Pick.  543. 

2  Wolfe  V.  Crawford,  54  Miss.  514;  *  Morgan  «.  Ide,8  Cush.  420;  Chan- 
Scofield  V.  Bell,  14  Mass.  40 ;  Meldrum  dler  v  -Thurston,  10  Pick.  205 ;  Lewis 
V.  Snow,  9  Pick.  441;  Hatch  v.  Bail-  v.  Lyman,  22  Pick.  437;  Coe  v.  Wil- 
ey, 12  Cush.  27 ;  Hatch  v.  Lincoln,  Id.  son,  46  Me.  314. 

3L 


PKOPERTT    CONSIGNED.  IGl 

lessee  or  borrower  has  been  held  to  have  an  attachable  interest 
or  has  been  held  to  have  none. 

Trust  property  is  not  liable  to  attachment  for  the  debt  of  the 
trustee,  though  it  be  recorded  in  his  name  J 

The  rule  that  third  persons,  lawfully  possessing,  cannot  be 
disturbed,  extends  to  officers  who  hold  property  in  an  official 
capacity;  to  sheritfs  and  marshals  who  hold  upon  attachments 
already  executed,  or  under  other  seizure;  to  all  whose  posses- 
sion is  such  that  the  property  held  is  in  the  custody  of  the 
law. 3  Though  he  cannot  disturb  the  possession  already  ac- 
quired, an  officer  may  levy  on  goods  in  the  custody  of 
another  officer  w^ho  must  endorse  the  second  attachment  on  the 
lirst.  3 

When  property,  in  the  custody  of  the  law,  has  been  reduced 
to  money,  or  when  money  is  in  such  custody  however  it  may 
have  reached  the  possession  of  the  lawful  official  custodian,  it 
is  not  attachable.'* 

Sec.  3.    Property  Consigned. 

Goods  sold  but  not  paid  for,  consigned  by  the  vendor  to  the 
vendee,  are  not  attachable  as  the  property  of  a  consignee  before 

'  Houghton  V.   Davenport,  74  Me.  v.   Sessions,  34   Mich.  99,  and  many 

590.         -  other  cases  cited  in  Ch.  VI,  j^  5. 

2  Paradise  v.  Farmers'    and   Mer-  ^  White  «.  Culter,  12    111.  App.  38; 

chants'  Banli,  5  La.  Ann.  710 ;  Wallver  Acts  of  1874,  Ch.  77,  §  51. 
«.    Foxcroft,   2  Me.  270;    Strout    v.  *  Pierce    v.   Carleton,  12  111,   364; 

Bradbury,  5  Id.  813;  Odiorne  «.  Col-  Dawson    v.    Holcomb,  1    Ohio,  275; 

ley,  2  N.  H.  66 ;  Moore  v.   Graves,  3  First  v.  Miller,  4  Bibb.  311 ;  Reddick 

Id.  408;  Lathrop®.  Blake,  3  Fos.  46;  v.  Smith,    4   111.    451;  Thompson   v. 

Burroughs  v.    Wright,    16   Vt.   619;  Brown,    17    Pick.    462;     Clymer   v. 

West  River  Bank  v.  Gorham,  38  Vt.  Willis.  3  Cal.  363;  Turner  v.  Fendall, 

649 ;  Watson   v.  Todd,  5   Mass.   271 ;  1  Cr.  117 ;  Crane  v.  Freeze,  1  Har.  3Co ; 

Vinton    v.    Bradford,     13    Id.    114;  Prentiss  «.  Bliss,  4  Vt.  513;  Jones  •«. 

Thompson -u.  Marsh,  14  Id.  269:  Bur-  Jones,  1  Bland,  443;  Dubois  v.  Du- 

lingame  v.  Bell,  16  Id.  318 ;  Robinson  v.  bois,  6  Cow.  494 ;  Burrell  v.  Letson,  1 

Ensign,  6  Gray,  300;  Benson  ».  Berry,  Strobhart,  239;  Conant  ■».  Bicknell,  1 

55  Barb.   620 ;  Read  v.   Sprague,  34  D.  Chipman,   50 ;  Farmers'   Bank  v. 

Ala.  101;  Harbiiifion  ».  McCartney,  1  Beaston,   7   Gill    &  J.  421;  Blair®. 

Grant,  172;  Wetldell  v.  Pierce,  13  N.  Cantey,  2  Speers,   34;  McKinney  v. 

H.  502;  Beers  v.   Place,  36   Ct.  578;  Purcell,  28  Kan.  446. 
Roberts  «.  Dunft,71  111.46;  Voorhies 

11 


102  ATTACniNG. 

eitliei-  actiKil  or  constructive  delivery.  The  rii;'ht  of  sto]->pno:e 
in  transitu^  before  tlie  goods  come  into  the  possession  of  u  jjur- 
chaser  who  has  become  bankrupt,  or  embarrassed  in  business, 
remains  in  the  vendor  after  the  consignment.  It  is  not  neces- 
sary to  the  existence  of  this  right  that  the  vendee  should  have 
made  a  surrender  in  court  as  an  insolvent;  it  is  sufKcient  if  he 
is  iinal)le  to  pay  his  debts.  The  consignor  may  conntermand 
delivery  and  resume  possession  f(;r  the  reason  that  the  other 
contracting  party  is  unable  to  perform,  and  he  would  be  bereft 
of  both  the  goods  and  their  price  were  he  not  allowed  to  regain 
the  former. 

Though  the  carrier's  possession  is  ordinarily  that  of  the  con- 
signee, yet  it  is  not  actual  custody  by  the  latter,  and  it  does  not 
take  away  the  consignor's  right  of  stoppage  hi  transitu. 
Though  the  case  would  be  difierent  were  the  goods  shipped  in 
payment  to  the  consignee,  so  that  the  consignor  could  have  no 
further  claim  upon  them,  yet,  in  the  case  above  suggested,  the 
goods  are  not  attachable  as  the  property  of  the  consignee  before 
delivery  to  him  by  the  carrier,  and  trover  will  lie  against  an 
attaching  ofticer  as  a  trespasser  who  seizes  them  as  such.i 

Though  there  may  be  no  difhculty  about  payment  upon  deliv- 
ery, yet  if,  by  the  terms  of  the  contract,  goods  must  be  weighed, 
measured,  selected,  etc.,  before  delivery,  the  sale  is  not  com- 
plete before  the  preliminaries  are  observed;  and,  nntil  delivery, 
they  are,  of  course,  attachable  as  the  property  of  the  vendor  and 
not  as  that  of  the  vendee.  ^  If,  however,  the  contract  is  com- 
plete, and  the  goods  are  in  process  of  delivery  by  the  vendor  as 
agent  of  the  vendee,  and  the  ownership  has  really  changed  from 
the  former  to  the  latter,  they  are  not  attachable  as  the  property 
•  of    the    vendor.  3      When    the    property    sold    is    not    actually 

1  Inslee  t).  Lane,  57  N.  H.  454,  and  11  East.  210;  Wallace  v.  Breeds,  13 
cases  therein  cited.  East.  532. 

2  Smart  «.  Balclielder,  57  N.  H.  ^  pioi^i^g  ^_  ^arr,  127  Mass.  533; 
141;  Prescott  ■«.  Locke,  51  Id.  94;  Leonard  v.  Davis,  1  Black,  476; 
Jenness  v.  Wendell,  51  Id.  63;  Mess-  Macomber  v.  Parker,  13  Pick.  175; 
ner  t>.  Woodman,  22  Id.  173;  Warren  Legg  v.  Willard,  17  Id.  140;  Riddle 
■»;.  Bnckminster,  34  Id.  336;  Fosters.  v.  Varnura,  20  Id.  280;  Stinson  v. 
Ropes,  111  Mass.  10;  Riddle  v.  Var-  Clark,  6  Allen,  340;  Ingalls  v.  Her- 
num  20  Pick.  380;  Rugg  «.  Miuett,  rick,  108  Mass.  351.      What  will  con- 


PKOrERTY    CONSIGNED.  1G3 

delivered,  but  a  bill  of  sale  is  given  to  tlie  piircliascr^for  a  valid 
consideration,  tlie  title  does  not  thus  pass  so  as  to  prevent  the 
attachment  of  the  property  in  a  suit  against  the  seller. ^  The 
sale  would  be  good  between  the  contracting  parties;  but,  with- 
out delivery,  it  is  not  so  as  against  an  attaching  creditor  of  the 
vendor.  If,  under  such  circumstances,  the  purchaser  should 
perform  some  act  of  ownership,  or  the  seller  should  agree  to 
keep  the  property  for  the  purchaser,  as  his  agent,  the  transfer 
would  be  complete.*  If  the  property  sold  is  in  the  custody  of 
a  third  person,  and  notice  of  the  sale  is  given  to  him,  and  he 
continues  the  custody  as  the  agent  of  the  purchaser,  the  transfer 
would  be  complete.  3 

The  vendee  who  has  had  goods  delivered  to  him  which  he 
has  bought  in  good  faith  but  has  not  paid  for,  will  be  presumed 
the  owner,  so  that  an  attaching  creditor  may  seize  them;  and 
should  the  vendors  attempt  to  regain  them,  they  must  allege  and 
prove  fraud  on  the  part  of  the  purchaser. *  But  they  cannot 
attach  and  yet  claim  to  own  the  goods.  Even  if  the  purchaser 
has  bought  them  with  the  intention  of  not  paying*  for  them  but 
making  an  assignment  thereof  in  favor  of  preferred  creditors 
who  are  not  the  vendors,  the  latter  cannot  attach  the  goods  as 
the  projjerty  of  the  purchaser,  and,  at  the  same  time,  set  up 
that  the  sale  was  void  because  of  fraud.  They  could  disclaim 
the  sale  and  recover  the  goods;  but  they  could  not  employ  both 
remedies.  5 

The  consignor  who  ships  goods  to  his  creditor  in  payment, 
parts  with  his  ownership  when  he  delivers  them  to  the  carrier; 
the  possession  by  the  the  latter  is  that  of  the  consignee,  and  the 

stitute  a  symbolic  delivery  so  as  to  ^  jQg^iig  p.  Herrick,  108  Mass.  851 ; 

perfect  the   title  of  the  vendee   and  Chapman  v.  Searle,  3  Pick.  38. 

render  it  good  against  an  attachment  ^  Tuxworth  v.  Moore,  9  Pick.  347; 

in  a  suit  against  the  vendor:  Kussell  BuUard  v.  Wait,  16  Gray,  55;  Thorn- 

V.  O'Brien,  127  Mass.  349.  dike  v.  Bath,  114  Mass.  116;  Russell 

1  Dempsey  v.  Gardner,  127   Mass.  v.  O'Brien,  127  Mass.  349. 

381 ;    Carter  v.  Willard,  19  Pick.  1 ;  *  Am.  Ex.  Co.  v.  Smith  &  Critfen- 

ShumwayB.  Rutter,  7  Pick.  56;  Pack-  den,  57   Iowa,  242.      See   Devoe  v, 

ard  V.   Wood,   4  Gray,  307 ;  Rourke  Brandt,  53  N.  Y.  462. 

V  Bullens,  8  Id.  549 ;  Veazie  v.  Som-  ^  O'Donald  v.  Constant,  82  Ind.  213. 
erby,  5  Ailen,  280. 


1G4  ATTACHING. 

goods  are  not  attachable  as  the  property  of  the  consignor,  even 
though  lie  has  retained  a  bill  of  lading.^  Thougli  such  evi- 
dence of  ownersliip  is  like  commercial  paper,  transferable  l)y 
delivery;  and  though  ordinarily  a  shipper  who  retains  the  bill 
of  lading  in  his  hands  has  control  of  the  goods  shipped  so  as 
to  he  al)le  to  put  them  into  the  legal  possession  of  any  one  by 
giving  him,  or  sending  to  him  such  evidence  of  ownership,  yet 
Avhen  the  goods  have  been  consigned  to  pay  debt,  as  above 
stated,  the  consignor  retains  no  ownership;  and  the  bill  of  lad- 
ing, by  being  subsequently  transferred  to  another,  would  not 
convey  the  goods.  The  bill  differs  from  commercial  paper  in 
an  important  feature.  It  cannot  convey  a  better  title  than  the 
consignor  possesses  at  the  time  of  its  delivery  as  a  symbolic 
deliv^ery  of  the  property,  while  commercial  paper  passes  from 
liand  to  hand  leaving  no  question  as  to  the  right  of  the 
transfer.  2  ' 

Sec.  4.    Exemption. 

Attachable  property,  including  projjerty  rights,  interests, 
credits,  assets — all  species,  real  and  personal,  is  necessarily 
limited  by  the  statutes  to  that  which  is  owned  by  the  defend- 
ant and  liable  to  execution  in  satisfaction  of  any  judgment 
which  the  attaching  creditor  may  obtain.  Obviously,  it  must 
be  limited  to  the  defendant's  ownership,  since  otherwise  the 
attachment  would  conflict  with  the  rights  of  the  true  owners; 
and  it  must  be  restricted  to  property  not  exempt  from  execution, 
since  otherwise  its  conservation  for  the  purpose  of  effectuating 
the  judgment  would  be  idle  and  absurd. 3 

The  attachment  statutes  expressly  except  from  their  authoriza- 
tions, property  exempt  by  law  from  execution;  but  were  they 
silent  on  the  subject  the  effect  would  be  the  same,  since  the 
exemption  laws  would  render  such  attachment  a  work  of  super- 

»  Straus  V.  Wessel,  30  Ohio  St.  211.  Mullen  v.  Lockard,  64  Ala.  56.    See 

2  Emery's  Sons  v.  Irving   National  Williams  v.  St.  Louis,  Iron  Mountain, 

Bank,    25   Ohio   St.   368;    (Ben j.  on  &c.  11.  R.  Co.  8  Mo.  App.  135 ;  Frank 

Sales,  §  864.)  «.  Siegel,  9  Mo.  App.  467 ;  Souiers  v. 

^  It  cannot  reach  the  wife's  separ-  Emerson,  58  N.  H.  48. 
ate,  statutory  estate  in  Alabama :  Mc- 


EXEMPTION.  165 

erogation  and  of  abortive  results.  For  instance,  the  debtor's 
homestead  could  not  be  attached,  if  secured  to  him  by  a  home- 
stead law,  though  the  attachment  law  of  his  State  should  con- 
tain no  exception  in  favor  of  that  or  any  other  exemption. 
Where  no  distinct  property,  such  as  the  homestead,  is  rendered 
legally  exempt,  but  the  law  generalizes  so  as  to  allow  the  debtor's 
retention  of  property  to  a  certain  pecuniary  value,  there  maybe 
difficulty  in  ascertaining  whether  property  pointed  out  by  the 
plaintiff  for  attachment  is  really  susceptible  of  it.  Though 
attached  in  good  faith,  it  may  afterwards  prove  unattachable 
because  in  conflict  with  the  exemption. 

Whether  the  true  state  of  facts  be  ascertainable  before  or 
after  the  levy,  the  rule  still  holds  that  any  property  or  property 
right  of  the  defendant  not  susceptible  of  being  seized  and  sold 
under  a  writ  of  execution  after  judgment,  is  not  attachable.  ^ 
Under  exemption  laws  the  debtor  is  allowed  to  retain  some 
designated  kinds  of  his  property,  free  from  the  attacks  of  credi- 
tors; such  as  homesteads,  necessary  household  furniture,  imple- 
ments of  husbandry  and  of  trades.  ^  Often  the  amount  excepted 
from  execution  is  designated.  Whatever  is  thus  exempt  from 
execution  cannot  he  subjected  to  preliminary  seizure  by  the 
creditor  with  the  view  to  execution.  But  as  the  debtor  may 
waive  his  rights  under  the  exemption  laws  and  allow  all 
his  property  to  be  seized  and  sold  under  execution,  so  he  may 
waive  them  when  his  exempt  property  is  preliminarily  attached.  3 
Silent  acquiescence  in  an  attachment  creates  the  presumption  of 
waiver.     If  the  defendant  does  not  set  up  his  exemption  right 

»  Rowell    V.   Powell,   53   Vt.   303 ;  Mott,  29  Cal.  350 ;    Plant  v.  Smytlie. 

George  v.  Bassett,  54  Vt.  217;  Parks  45   Cal.  161;    Wilson  v.  Paulson,  57 

«.  Cushman,  9    Vt.    320;    Halsey®.  Ga.  596;    Cox  t;.  Milner,  23  LI.  476; 

Fairbanks,  4  Mason,  206;    Handy  v.  Bappington  v.  Oeschli,  49   Mo.  244; 

Dobbin,    12    Johns.   220;    Pierce  v.  '  Reed  «.  Ownby,  44  Mo.  204. 

Jackson,    6    Mass.    242;     Savery  v.  2  p'isli «.  Street,  27  Kan.  270 ;  Parsb- 

Browning,    18   Iowa,   246;     Stale  v.  ley  «.  Green,  58  K  H.  271;  Carkinw, 

Sandford^  12  Nebraska,  445;  Gall  v.  Babbitt,  58  N.  H.  579. 

Hinton,  7   Abb.   Pr.  120;  Spencer  «.  *  State   ea;  re?.  Kahoon  ij.  Krunipus, 

Blaisdell,   4  N.    H.  198;    Crocker  «.  13   Neb.  266;    Taffis  «.  Maulove,   14 

Pierce,  31  Me.   177;    Davis  v.    Gar-.  Cal.  47;  Buzzell  y.  Hardy,  58   N.  H. 

rett,  3   Iredell,  459 ;    Nashville  Bank  331. 
V.    Ragsdale,    Peck,  296;    Myers   v. 


166  ATTACHING. 

by  way  of  defense  to  the  attacliinent  suit  in  wliicli  lie  personally 
ap})ears,  lie  cannot  avail  liiniself  of  it  to  defeat  execution  after 
judgment.^ 

Tiie  proper  time  for  assertin-^  exemption  rights  is  when  the 
levy  is  made.  The  debtor  should  then  make  known  to  the 
attaching  officer  that  a  thing  is  not  liable  to  levy  if  such  is  the 
case;  and,  if  it  forms  but  a  part  of  property,  of  which  the 
major  portion  is  attachable,  he  should  then  point  out  and  claim 
what  he  is  legally  entitled  to  retain;  and,  when  he  is  present, 
or  so  situated  that  he  may  easily  be  present,  or  other- 
wise knows  of  the  attachment  of  the  whole,  and  makes  no 
claim  to  his  part,  and  no  explanation  or  statement  of  his 
exemption  right  therein  to  the  officer,  he  will  be  presumed  to 
have  waived  his  right,  s  So  far  as  any  action  against  the  officer, 
as  a  trespasser,  is  concerned,  such  acqiiiescence  on  the  part  of  a 
debt(jr  with  knowledge  of  the  levy  would  be  a  complete  waiver, 
which  would  entirely  protect  the  officer  so  far  as  the  defendant 
is  concerned;  but  so  far  as  the  debtor's  defense  to  the  attach- 
ment suit  is  concerned,  silence  at  the  time  of  the  levy  does  not 
invariably  estop  him  from  setting  up  exemption  in  his  answer. 
The  presumption  of  waiver  may  be  overcome  by  a  proper  show- 
ing. He  may  obtain  possession  of  his  exempt  property  by 
replevy.  ^ 

Pie  cannot,  by  making  a  place  his  homestead,  defeat  an  attach- 
ment previously  laid  upon  it.^  The  reason  is  that  when  such 
farm  or  dwelling  has  been  legally  attached,  a  lien  in  favor  of 
the  creditor  is  put  upon  it;  and  a  subsequent  election,  on  the 
part  of  the  defendant,  cannot  remove  such  lien.  Were  the  rule 
otherwise,  the  creditor  might  not  only  fail  to  conserve  that 
property  for  execution  but  lose  his  opportunity  of  attaching  any 
other,  as  all  the  rest  might  be  meanwhile  mortgaged,  sold  or 

'  Kelly  V.  Dill,  23  Minn.  435;  State  son  v.  "Wilson,  58   Id.   416;    Nash  v. 

ex  rel.  Kahoon  «.  Krumpus,  13  Neb.  Fanington,  4  Allen,  157 ;    Clapp  v. 

266;  State  v.  Manly,  15  Ind.  8;  Per-  Thomas,  5  Id.  158. 

kins  v.:  Bragg,  29  Ind.  507 ;  Barney  v.  ^  Hoisington  v.  Armstrong,  22  Kan. 

Keniston,  58  N.  H.  168.  110. 

2Behymer    v.   Cook,  5    Col.   395;  *  Kelly  «.  Dill,  23  Minn.  435. 
Smith  V.  Chadwick,  51  Me,  515;  Cal- 


CIICSES    IN    ACTION.  167 

attaclicd  by  others.  But,  as  lie,  like  all  others,  must  be  pre- 
sumed to  know  the  law,  (including-  exemption  statutes,)  he 
attaches  subject  to  the  defendant's  right  to  claim  exemption  if 
such  right  has  not  been  waived;  and  the  attachment  can  create 
no  lien  that  would  defeat  such  right. 

"When  the  law  exempts  eithel*  of  two  pieces  of  property;  or 
one,  however  many  the  debtor  ma}''  possess,  (as,  one  house,  one 
cow,  one  piano,)  the  debtor  must  point  out  the  thing  for  which 
he  claims  exemption,  or  his  right  will  be  considered  waived. 
He  must  make  known  his  election  of  the  exempt  property  at 
once,  and  not  stand  silent  till  the  officer  has  decided  what  to 
seize  and  has  actually  made  the  levy;  or  if  no  prior  opportunity 
has  been  afforded  him,  he  should  elect  soon  after  the  seizure. 
He  must  not  play  fast  and  loose;  must  not  maintain  such  a 
position  that  he  can  claim  exemption  for  any  one  of  several  arti- 
cles attached,  on  the  ground  that  that  particular  one  is  exempt. 
If  he  sets  up  no  exemption  at  or  about  the  time  of  the  levy,  the 
officer  may  attach  any  one  of  several  articles,  though  some  one 
be  exempt,  if  anyone  is  sufficient  to  make  the  plaintiff's  execution 
good  in  case  of  judgment.  ^  If  he  should  point  out  as  exempt 
a  piece  of  property  not  his  own,  he  would  thus  be  estopped  from 
afterwards  setting  up  his  own  attached  property  as  exempt,  if  as 
much  as  the  law  excepts  from  seizure  had  thus  been  pointed  out.^ 

One  of  several  articles  being  attached  without  remonstrance 
on  the  part  of  the  defendant  entitled  to  claim  one  as  exempt,  its 
preliminary  seizure  is  lawful,  and  the  sale  in  execution  after 
judgment  must  therefore  be  so;  and  as  it  relates  back  to  the 
levy,  the  creditor  is  not  affected  by  any  intermediate  notice  or 
record. ^ 

Sec.  5.    Choses  in  Action. 

A  mere  paj^er  evidencing  debt,  such  as  a  promissory  note,  in 
the  hands  of  a  third  person  for  the  purpose  of  enabling  him  to 

1  Buzzell  V.  Hardy,  58  N.  H.  332 ;  ^  Biizzell  v.  Hardy,  58  N.  H.  331 ; 
Horn  v.  Cole,  51  N.  H.  287.  But  see  Stowe  v.  Meserve,  13  Id,  46;  Coffin  v. 
Close  v.  St.  Clair,  38  Ohio  St.  530.  Ray,  1  Met,  212 ;  Stanley  v.  Perry,  5 

2  Barney  v.  Keniston,  58  N.  H.  168.  Greenlf.  369 ;  Emerson  v.  Littlefield, 
See  Brooks  v.  Chatham,  57  Tex.  81.  3  Fairf.  148. 


1C8 


ATTACHING. 


collect  money  due  tlie  owner  of  such  paper,  is  not  susceptible 
of  being  proceeded  against  as  the  res.  in  an  attachment  suit; 
for,  though  it  belongs  to  the  attacliment  defendant,  it  is  not 
the  debt  of  which  it  gives  evidence,  nor  is  it  property  beyond 
the  value  of  the  mere  fabric.  Tlie  third  person  having  the 
note  in  his  possession,  to  collect  it  for  the  defendant,  is  not 
therefore  the  debtor  of  the  defendant.  The  fact  that  he  will 
be  the  possessor  of  money  when  he  shall  have  collected  the 
note,  does  not  alter  the  case;  for  to  be  garnishable,  he  must 
owe  money  or  hold  liable  property  at  the  time  of  the  service 
upon  him  J 

The  general  principle  above  briefly  enunciated,  and  the 
remarks  to  follow,  will  be  understood  to  be  inapplicable  where, 
in  any  State,  such  evidences  are  made  attachable  by  statute.^ 
It  is,  however,  held  nowhere  that  the  mere  evidence  of  a  debt 
is  the  debt  itself,  any  more  than  that  the  title  to  land  is  land 
itself;  and  where  evidences  of  debt  are  made  attachable  by 
statute,  they  are  usually  attached    as  representing    the  debt  or 


'  Jackson  v.  Willard,  4  Johns.  41 ; 
Denton  v.  Livingston,  9  Id.  90;  Han- 
dy «.  Dobbin,  13  Id.  220;  Maun  v. 
Exrs.  of  Mann,  1  Johns.  Ch.  231 ; 
Fletcher  ».  Fletcher  7  N.  H.  452; 
Spencers.  Blaisdell,  4  N.  H.  198; 
Howland  v.  Spencer,  14  Id.  580;  N. 
H.  Ins.  Co.  V.  Piatt,  5  N.  H.  193; 
Stone  «.  Dean,  Id.  502 ;  Roundlett  v. 
Jordan,  3  Greenl.  47;  Klinefelter  v. 
Blaine,  3  Dana.  468 ;  Maine  Ins.  Co. 
«.  Weeks,  7  Mass.  438;  Dickinson  v. 
Strong,  4  Pick.  57 ;  Lupton  ®.  Cutter, 
8  Id.  298 ;  Perry  v.  Coates,  9  Mass. 
537;  Grants.  Shaw,  16  Mass.  341; 
Andrews  v.  Ludlow,  5  Pick.  28 ;  Fran- 
cis V.  Nash,  Hardw.  53 ;  Staple  v.  Bird, 
Barnes,  214;  McCarthy  v.  Goold,  1 
Ball  &  B.  387;  Padfield  v.  Brine,  8 
Id.  294;  Knight  v.  Criddle,  9  East. 
48;  Stewart  v.  Marquis  of  Bute,  11 
Ves.  657 ;  Fitch  v.  White,  5  Ct.  117 ; 
Grosvenor  v.  Bank,  13  Ct.  104;  Bow- 
ker  V.  Hill,  60  Me.  172:  Skowhegan 


Bank  v.  Farrar,  46  Me.  293 ;  Smith  v. 
Kennebec,  &c.  R.   Co.,  45  Me.  547; 
Wilson  V.  Wood,  34  Me.    123;.  Clark 
V.   Viles,    32    Me.    32;    Copeland  v. 
Weld,  8  Me.  411 ;  Hitchcock  v.  Eger- 
ton,  8  Vt.  202 ;  Van  Amee  v.  Jackson, 
85  Vt.  173 ;  Fuller  v.  Jewett,  37  Vt. 
473;    Jones  v.  Norris,    2  Ala.    526; 
Marston  v.  Carr,  16  Id.  325;  Pierce  v. 
Shorter,  50  Id.  318;  Ellison  v.  Tuttle, 
26  Tex.   283;  Tirrell  v.  Canada,   25 
Id.   455;    Taylor  v.   Gillian,  23   Id. 
508;    Price    v.    Brady,    21    Id.   614 
Moore    v.    Pillow,    3  Humph.   448 
Wilson  V.  Albright,  2  G.  Greene,  125 
Deacon    v.    Oliver,    14    How.    610 
Raiguel  v.    McConnell,    25    Pa.  St 
362;  Allen  v.  Erie  Bank,  57  Id.  129 
Galena  &  Southern  Wisconsin  R.  R 
Co.  V.  Stahl,    103   111.   67;  Mayes  v. 
Phillips,  60  Miss.  547. 

^  See   Somers    v.  Losey,  48  Mich, 
294. 


CHOSES    IN    ACTION.  169 

facilitating  tlie  collection  of  it.  "When  notes  are  impounded 
they  are  merely  held  to  prevent  their  cii'culation,  transfer  by 
mere  delivery,  etc.^  in  order  to  conserve  the  debt  dne  the  defend- 
ant that  it  may  remain  available  to  the  plaintiff  npon  his 
obtaining  judgment.  The  statute,  whatever  it  authorizes,  how- 
ever exceptional  its  authorized"  procedure  may  be  to  general 
practice,  must  be  the  governing  law  in  the  State  where  it  has 
been  enacted ;  and  whatever  it  prescribes  as  to  method  must  be 
followed  there. 

A  promissory  note  is  not  included  in  the  terra  "goods"  or 
"  effects;"  it  is  not  a  cJwse  in  possession,  though,  when  endorsed 
in  blank,  such  an  instrument  has  been  sometimes  held  such,  and 
to  be  a  chattel  or  money,  like  a  bank  note.i  But  it  cHnnot 
affect  the  true  character  of  such  paper  whether  it  is  endorsed 
or  not.  Whether  it  is  so  or  not,  it  is  only  an  indication  of  an 
existing  right — not  money,  nor  credit,  nor  property.  The 
attachment  defendant  owns  the  paper;  a  third  person  may  possess 
it,  but  the  obligor  of  the  note  is  the  defendant's  debtor  and  the 
person  who  ought  to  be  garnished — not  the  attorney  who  holds 
the  written  paper  for  the  purpose  of  collecting  the  amount 
acknowdedged  by  the  note  to  be  due  the  defendant;  for  promis- 
sory notes,  bonds,  accounts,  etc.,  are  not  choses  in  possession, 
nor  chattels,  nor  goods  nor  effects,  within  the  meaning  of  the 
law  of  attachment;  and  statutes  are  not  to  be  construed  as 
extending  the  meaning  unless  where  such  interpretation  is 
obviously  the  right  one  by  the  terms  of  the  statute.  ^ 

The  levy  Upon  the  written  evidence  of  a  credit  due  the 
defendant,  in  the  form  of  a  note  of  hand,  found  in  the  posses- 
sion of  the  defendant  or  of  some  bank  or  other  agent  of  liis, 
instead  of  garnishing  the  creditor  who  owes  him  the  debt  evi- 
denced by  the  note,  is  nut  different  in  principle  from  the  attach- 
ment of  book  accounts  instead    of  garnishing    those  who   owe 

1  Bradley  v.  Hunt,  5  Gill.  &  Johns.  ^  Grosvenor  v.    The    Farmers'    & 

54;  McNeilage  v.  Halloway,  1  B.  &  Mechanics'  Bank,  13   Ct.   104;  Fitch 

A.  218;  Brush  v.  Scrihuer,  11  Ct.  388,  v.  Waite,  5  Ct.  118,  128;  N.  H.  I.  F 

(though   these  cases  do  not  decide  Co.  ».  Piatt,  5  N.  H.  193;  Maine  Fire 

thai  such  choses  may  be  seized   and  Ins.  Co.  v.  Weeks,  7  Mass.  438 ;  Perry 

sold  under  execution.)  v.  Coates,  9  Mass.  537. 


170  ATTACIIIKG. 

what  tlie  accounts  show  to  be  due  the  defendtint.  In  the  latter 
case,  it  is  lield  that  levy  on  the  account  books  is  not  a  levy  on 
the  debts  charged  therein  due  by  others  to  the  defendant. i 

While  money  in  a  garnishee's  hands  belonging  to  an  indi- 
vidual member  of  a  partnership  has  been  held  to  render  the 
possessor  garnishable  in  a  suit  against  the  firm,  a  chose  in 
action  so  held  does  not  make  him  liable.  ^ 

If  one  creditor  should  attach  a  promissory  note  or  bill  of 
exchange  found  in  the  possession  of  the  debtor,  and  another 
should  attach  the  debt  itself  in  the  hands  of  the  third  person 
owing  it  to  the  defendant,  by  the  process  of  garnishment, 3  it 
would  plainly  appear  that  the  first  would  have  seized  only  the 
evidence  of  the  indebtedness  while  the  second  would  have 
attached  the  debt.  Which  would  have  created  a  lien?  Which 
would  have  something  susceptible  of  being  proceeded  against 
as  the  res  in  the  ancillary  proceeding?  Certainly  the  creditor 
who  had  garnished  the  obligor  would  be  the  only  attacher  of 
the  credit  due  to  the  defendant. *  The  other,  having  merely 
the  evidence  of  the  fact  that  the  maker  of  the  note  owes  the 
defendant,  would  have  nothing  attached  which  could  be.  pro- 
ceeded against.  In  a  conflict  between  the  rival  creditors,  there 
can  be  no  doubt  that  the  one  v^dlo  should  garnish  the  maker  of 
the  note  and  attach  the  defendant's  credit  in  the  garnishee's 
hands  would  be  preferred.  Even  if  the  garnishment  should 
take  place  subsequently  to  the  seizure  of  the  paper-evidence,  it 
would  hold  good. 

There  would  seem  to  be  no  meaning  in  authorizations  to 
attach  notes,  bills,  etc.,  unless  the  word  "attach"  has  the 
limited  meaning  that  evidences  of  debt  may  be  taken  prelimi- 
narily to  a  valid  attachment  of  the  debt  due  the  defendant  by 
the  subsequent  garnishment  of  his  debtor. 

It  may  be  said  that  except  so  far  as  statutes  expressly  authorize 

1 

1  Lesher  v.  Getman,  30  Minn.  321 ;  Stevens  v.  Perry,  113  Mass.  380. 
Fernald  v.  Chase,   37  Me.  289;  Ting-  3  Bills  ».  Nat.  Park  Bank,  89  N.  Y. 
ley  v.   Dolby,   13   Neb.   371;  Ide  v.  343. 

Harwood,  30  Minn.  191.  *  Prout  v.  Grout,  72  111.  456. 

2  Pierce  v.   Shorter,   50   Ala.  318; 


METHOD    OF    SEIZING.  171 

the  talcinp^  of  promissory  notes,  bonds,*  certificates  of  stock, 
accounts,  title  deeds  to  lands,  book  accounts,  and  other  evidences 
of  debt  or  property,  snch  things  are  not  attachable  on  general 
principles,  because  their  presence  in  conrt  is  not  the  presence 
of  the  de1)ts  or  property  \vhich  they  evidence  or  indicate. ^ 

If  the  object  is  to  attach  the  defendant's  right  to  receive 
payment  on  the  promissory  notes,  bonds,  etc.,  which  he  holds, 
and  not  to  proceed  against  his  debtor  by  way  of  garnishment, 
the  attachment  would  be  that  of  an  incorporeal  thing;  and  the 
taking  of  the  evidences,  in  such  case,  niight  be  made  by  statute 
the  legal  method  of  proceeding  against  such  right  or  interest. 
In  other  words,  the  law  may  create  a  hypothetical  subrogation, 
putting  the  attaching  creditor  in  the  shoes  of  the  original  payee, 
and  creating  a  lien  upon  the  debt  due  the  defendant.  It  would 
seem  that  only  in  this  way  can  authorizations  to  attach  such  evi> 
deuces  be  i-eudered  practical  and  available. 

Sec.  6.    Method  of  Seizing. 

Attachable  property,  owned  and  possessed  by  the  debtor,  may 
be  real  or  personal  or  mixed;  it  may  be  tangible  or  incorporeal. 
Its  nature  determines,  to  a  considerable  degree,  what  is  neces- 
sary to  its  valid  seizure.  Land  is  not  susceptible  of  manipula- 
tion, and  therefore  it  is  attached  by  serving  a  copy  of  the  writ 
upon  ,the  tenant  in  possession  without  disturbing  his  tenancy, 
and  then  returning  the  writ  with  a  statement  of  the  fact 
of  levying  attached  thereon.  3  Service  of  the  co23y  on  the 
tenant  is  not  a  universal  requirement. *  The  endorsement 
on  the  writ    should   contain    a  certain  description    of  the  real 

1  Providence  &  Stouington  S.  S.  Me.  289;  Lesber  v.  Getman,  oOMion 
Co.  V.  Va.  Fire  &  Marine  Ins.  Co.  20  321 ;  Matheny  v.  Hughes,  10  Heisk 
Blatchf.  C.  C.  405.  401. 

2  Probst    V.    Scott,    31    Ark.    652;  ^  jja^cock  v.  Henderson,  45  Tex 
Prout  V.  Grout,  72  HI.  456.     See  with  479;  Wood  v.  Weir,  5  B.  Mou.  544 
reference  to  tbis  subject,  Bradford  «.  Lyon  i\   Sanford,   5   Ct.   544;    Scott 
Gillispie,  8  Dana,  67;   Hergman   «.  i).  Manchester  Print  Works,  44  N.  H, 
Dettlebiicb,  11  How.  Pr.  46;  Brower  507. 

■y.  Smith,  17  Wis.  410;  Codington  v.  *  Rogers  ».  Bonner,  45  N.  Y.   379; 

Gilbert,  5   Duer,   72;  Ohors  v.  Hill,      same,  55  Barb.  9. 
3  McCord,  338;  Fernald  v.  Chase,  37 


172  ATTACHING. 

estate  attaelied.i  If  tlie  description  is  certain,  it  need  not  be 
an  accurate  detail  of  the  metes  and  bounds  with  such  particu- 
hirity  as  would  be  required  in  a  title  deed,  or  even  in  a  writ  of 
execution. 2  But  if  the  desci'iption  is  ambiguous  or  otherwise 
uncertain,  there  is  no  valid  attachment  by  notice  to  the  tenant 
in  possession  coupled  with  such  a  return.  ^ 

If  the  sheriff  notifies  the  tenant  in  possession  and  so  returns 
what  real  estate  he  has  attached  that  it  may  be  made  the  object 
of  the  ancillary  action  and  the  bearer  of  a  lien  securing  the 
creditor's  claim,  it  is  not  necessary  to  show  in  the  return  that 
he  has  been  personally  upon  the  land,  or  that  he  has  performed 
any  act  or  ceremony  by  way  of  attaching  it.  The  act  of  attach- 
ing must  be  such  as  to  create  a  lien  upon  the  land  susceptible 
of  being  perfected  by  judgment,  since  that  is  the  very  ol)ject 
of  the  process.*  Though  courts  have  frequently  held  that  an 
accurate  description  of  real  estate  attached,  as  in  a  title  deed, 
is  not  necessary  to  the  validity  of  the  attachment  nor  the  crea- 
tion of  the  lien,  yet  the  better  practice  is  to  make  such  descrip- 
tion, with  the  metes  and  bounds  and  number  of  acres  stated. 
Such  particularity  can  never  do  harm  and  can  never  give  occa- 
sion for  the  attack  of  the  service  as  imperfect  because  of 
uncertainty  of  description.  In  a  contest  among  attaching 
creditors,  such  particularity  may  serve  a  good  purpose.  In 
recording  the  attachment  of  land,  an  accurate  description  be- 
comes necessary.  Considered  as  a  preliminary  seizure  for  tlie 
purpose  of  eventual  execution,  there  is  much  reason  for  making 

1  Buckhardt  v.  McClellan,  1  Abb.  bard  v.  Pike,  33  Me.  141 ;  Fitzliugh 
App.  Dec.  263;  Carleton  ».  Eyerson,  'y.  Hellen,  3  Har.  &  J.  206;  Henry  v. 
59   Me.  438;    Taylor  v.   Mixter,   11      Mitchell,  32  Mo.  512. 

Pick.  341.  *  Yeatman  v.   Savings  Institution, 

2  Crosby  v.  AUyn,  5  Me.  453;  Bacon  95  U.  S.  764,  and  cases  cited  therein 
V.  Leonard,  4  Pick.  277;  Whitaker  v.  at  p.  766  on  liens;  Saunders ^i.Colum- 
Sumner,  9  Pick.  308;  Pratt  v.  Wheel-  bus  Life  Ins.  Co.  43  Miss.  583;  Wor- 
er,  6  Gray,  520 ;  Howard  v.  Daniels,  cester  Nat.  Bank  •».  Cheeney,  87  111. 
2N.  H.  137;  Moore  «.  Kidder,  55  N.  602;  Carter  t).  Champion,  8  Ct.  549; 
H.  488.  Patch    v.    Wessels,    46    Mich.    249 ; 

^Menley  «.   Zeigler,  23   Tex.  88;       Chandler  ?;.  Dyer,  37  Vt.   345;  Adler 
Porter  v.  Byrne,  10  Ind.  146;  Hath-      «.  Roth,  2  McCrary,  445. 
away  v.  Laribee,   27   Me.   449 ;  Lam- 


METHOD    OF    SEIZING.  17  S 

the  description  of  land  attached  as  full  and  accurate  as  its 
description  when  it  is  to  be  sold  under  execution,  though  the 
practice  does  not  imperatively  require  it.  It  would  he  not 
advisable  for  the  sheriff  to  rely  too  strongly  npon  decisions 
sustaining  doubtful  descriptions  when  he  has  it  in  his  power  to 
make  a  ]ierfect  return  free  from  any  invitation  to  attack. 

Attacliment  of  land  by  such  notice,  description  and  return 
is  presumed  to  be  tliat  of  the  defendant,  whether  the  officer 
so  states  it  or  not.  The  return  is  an  answer  to  the  command 
to  seize  property  of  the  defendant;  and  the  statement  that  real 
estate  of  a  certain  description  has  been  attached  implies  that  the 
t)rder  has  been  obeyed.  The  attachment  is,  therefore,  not  radic- 
ally defective  when  the  sheriff  fails  to  describe  the  land  as 
belonging  to  the  defendant, i   though  he  ought  so  to  state. 

When  the  debtor  owns  some  interest  in  land  and  has  the  con- 
trol of  such  interest,  it  may  be  directly  attached — notice  being 
given  to  him.  Legal  interests  susceptible  of  bearing  a  lien 
are  proper  subjects  of  attachment.  In  California,  interests  in 
land,  whether  legal  or  equitable,  perfect  or  imperfect,  and 
whether  executory  or  executed  when  they  lie  in  contract,  are 
attachable.  2  In  Tennessee,  the  right  of  redemption  in  land 
sold  under  execution  may  be  attached  in  a  suit  in  eipiity 
against  a  non-resident  debtor.  ^  "Whatever  interest  may  become 
subject  to  the  attachment  lien,  is,  as  a  general  rule,  attachable 
in  all  the  States.  And  though  such  interest  is  an  incorporeal 
thing,  it  may  nevertheless  constitute  the  res  against  which  tlie 
property-action  is  directed.  And  when  such  lien  has  been 
created,  it  is  not  lost  by  the  transformation  of  the  incorporeal 
to  a  corporeal  thing:  as  when  an  undivided  interest  in  real 
estate  is  merged  into  the  part  which  falls  to  the  defendant  upon 

1  Miller  v.  Fay,  40  Wis.   633 ;  Por-  s  Herndon  v.  Pickard,  5  Lea,  702. 

ter  -».  Pico,  55  Cal.   165;  Saunders  v.  In  Minnesota,  the  right  of  the  mort- 

Columbus  Life  Ins.  Co.  43  Miss.  583 ;  gagor  to  redeem  may  be   attached, 

King  ?).  Bucks,  11   Ala.  217;  Rowan  when    the     chattel    is    still  in  the 

t.  Lamb,  4  G.  Greene,  468;  Stoddart  ■«.  hands  of  the  mortgagee.    Becker  ^i. 

McMahon,  35  Tex.  267.  Dunham,  27  Minil.  32. 

»  Fish  V.  Fowlie,  58  Cal.  373. 


174  ATTACHING. 

partition. 1  And  this  results,  wlietlier  the  partition  is  made 
after  the  attachment  or  is  made  before  without  notice  to  the 
attaching  creditor  and  beyond  his  knowledge.  The  defendant 
is  not  put  to  the  worse  by  the  lien  following  the  interest  from 
the  mass  to  a  distinct  apportionment  of  the  property.  If  his 
interest  in  an  undivided  tract  of  land  is  attached,  and  a  division 
subsequently  is  made  by  which  one-half  of  the  tract  is  set  oif 
to  him  as  his  share,  the  lien  will  pass  to  his  portion  and  leave 
the  other  half  free  and  unincumbered. 

It  has  been  held  that  an  execution  levied  upon  the  right,  title 
and  interest  of  a  judgment  debtor  is  a  levy  upon  the  land  itself 
for  all  practical  purposes,  if  the  title  is  wholly  in  him;  and 
that' a  sale  under  such  levy  would  convey  the  land. 3  And,  if 
there  is  a  mortgage  resting  upon  the  land,  and  the  right,  title 
and  interest  of  the  owner  executed  and  sold,  it  has  been  held 
that  the  land  itself  will  be  thus  conveyed,  and  the  mortgagee 
must  look  to  the  proceeds. ^ 

There  can  be  only  constructive  attachment,  when  some  inter- 
est under  the  control  of,  and  owned  by  the  defendant,  is  pro- 
ceeded against.  ISTot  being  susceptible  of  manipulation,  it  can 
be  attached  in  idea  merely,  by  giving  notice,  and  returning  that 
it  is  attached.  There  is,  however,  a  legal  transfer  of  control 
and  possession  from  the  defendant  to  the  officer,  if  the  levy  is 
valid.  In  the  eye  of  the  law,  the  latter  takes  possession  of  the 
incorporeal  thing,  brings  it  into  court,  and  holds  it  in  ciistodia 
legis.  The  owner  of  it  cannot  dispose  of  it  in  any  way  that 
will  disencumber  it  of  the  lien. 

Personal  property  should  be  seized  in  preference  to  real, 
even  when  the  statutes  to  do  not  imperatively  require  such 
preference.  It  is  the  species  of  property  most  readily  taken 
into  actual  possession,  and  is  that  which  is  most  usually  the 
subject  of  attachment. 

Goods  and  chattels  are  attached  by  the  actual  taking  of  them 

1  McMechan   t).    Griffing  et  al,  9  ^  yjias  ^.  Reynolds,  6  "Wis.  214. 

Pick.  538;  Munroe  v.  Luke,  19   Id.  ^  Trudeau  «.  McVicar,  1  La.  Ann. 

89;    Crosby    v.    Allyn,    5    Me.  453;  420;    Ducbaud    v.  Rousseau,   2    La. 

Argyle  v.  Dwinel,  29  Me.  29.  Ann.  168,  173. 


METHOD    OF    SEIZIlsG.  175 

by  the  slierilT  from  the  possession  of  the  debtor,  and  transfer- 
ring theui  to  the  control  of  tlie  court.  Thej  cannot  ordinarily 
be  the  subject  of  constructive  seizure.  Possession  creates  the 
presumption  of  ownership  in  movable  property;  and  there- 
fore, if  attached  goods  were  left  in  the  hands  of  the  debtor,  he 
might  validly  convey  them  to  an  innocent  pnrchaser  buying 
without  notice  of  the  attachment;  and  then  the  property  action 
would  be  at  an  end  for  want  of  the  thing  proceeded  against. 

AVhatever  is,  in  its  nature,  snsceptible  of  being  manipulated, 
can  be  validly  attached  oidy  by  the  taking  of  it  into  the  charge 
and  control  of  the  executive  officer,  acting  under  the  court. 
Whether  it  is  handled  and  removed  or  not;  whether  it  is  trans- 
ferred to  the  officer's  ware-house  or  left  in  its  original  locality 
in  charge  of  a  keeper  appointed  by  the  officer;  whether  it  is 
retained  directly  by  the  officer  or  entrusted  by  him  to  a  re- 
ceiptor or  given  in  charge  to  the  defendant  himself  under  a 
forthcoming  bond,  it  must  be  subjected  to,  and  continued 
under  the  control  of  the  court  so  as  to  constitute  the  res  of 
the  action. 

In  seizing  a  growing  crop,  the  sheriiF  must  obtain  control  of 
it,  give  proper  notice  to  the  person  in  charge  of  it,  make  such 
inventory  as  is  practicable,  and  duly  return  his  action  to  the 
court,  but  he  must  not  gather  the  crop  before  it  is  ripe,  nor 
prevent  its  cultivation  meanwhile.  It  would  manifestly  be  an 
act  of  fplly  to  take  possession  of,  and  remove  for  safe  keeping, 
any  species  of  property  of  such  a  nature  that  it  w^ould  be 
destroyed  by  such  action.  The  object  of  the  legislator,  in  pro- 
viding the  remedy  of  attachment,  is  to  enable  the  creditor  to 
make  his  money  out  of  the  property  of  the  debtor;  not  to  pro- 
voke the  wanton  destruction  of  the  property  which  would  be 
of  no  benefit  to  the  creditor  while  causing  loss  to  the  debtor 
and  diminishing  his  ability  to  pay.  If  the  nature  of  the  prop- 
erty is  such  that  it  cannot  be  taken  into  the  physical  possession 
of  the  officer  without  its  destruction,  it  cannot  legally  be  so 
taken;  if,  though  attached,  it  cannot  be  removed  without  such 
result,  it  is  not  legally  removable.  Illustrations  are  found  in 
the  nature  of  growing  crops  in   the  field,   unripe  fruit  in  the 


176  ATTACHING. 

orchard,  unformed  vegetables,  fresh  fish  and  meat,  articles 
under  process  of  being  manufactured,  etc.  ^ 

Tlie  taking  and  liolding  of  any  attachable  property  must  be 
such  as  to  maintain  the  incipient  lien,  to  perfect  it  upon  judg- 
ment, and  eventually  to  enforce  it  by  sale  of  the  thing  attached. 
Since  the  taking  is  preliminary  to  execution,  it  is  as  important 
that  the  property  should  be  actually  taken  and  held  as  if  the 
seizure  were  made  after  judgment  under  a  writ  of  execution. 2 

Actual  manipulation  is  not  always  necessary.  Nothing  is 
added  to  the  sanctity  of  a  seizure  by  laying  hands  on  the  article 
attached.  Gi'ain  in  bulk,  ships,  steamboats,  and  any  cumbrous 
property  may  be  left  where  found,  without  any  act  done  to  the 
thing  seized,  provided  tlie  sheriff  really  takes  it  in  charge  and 
holds  it  directly,  or  indirectly  by  his  servants,  or  by  others 
legally  authorized  to  hold  under  him.  What  is  meant  by  say- 
ing that  there  must  be  actual  seizure  is  that  there  must  be  a 
real  transfer  of  the  legal  possession  and  control  from  the  debtor 
to  the  sheriff. 

A  real  or  actual  attachment  is  not  accomplished  by  serving  a 
copy  of  the  writ  on  the  person  in  charge  of  goods,  acquainting 
him  of  the  character  of  the  paper,  making  an  inventory  of  the 
goods  and  returning  the  writ  into  court  with  a  statement 
endorsed  thereon  that  the  goods  have  been  attached.  ^  Such  pro- 
cedure on  the  part  of  the  officer  might  subject  him  to  damages 
in  a  suit  by  the  defendant  for  wrongful  constructive,  seizure 
without  amounting  to  a  valid  attachment.* 

Seizing  goods  by  merely  declaring  them  to  be  seized,  and 
posting  notice  of  the  attachment  upon  or  above  the  goods,  and 
making  a   return,  does  not    constitute    a   legal    attachment.  5 

'  "Raventas  v.  Green,   57   Cal.  254;  *  St.  George  v.  O'Comiell  et  al.  110 

Penballow  ®.  Dwight,  7  Mass.    34;  Mass.  475. 

Bond  V.  Ward,   Id.   123;    Wilds    «.  ^  Rix  v.  Silknitter,  57   Iowa,   262. 

Blancbard,    7  Vt.    138;    Wallaces.  Bryant  ».  Osgood,  52  N.  H.  182.    But 

Barker,  8  Vt.  440;  Norris  «.  Watson,  a  sheriff  made  a  memorandum  of  a 

2  Fos.  364.  portable  threshing  machine  and  its 

*  Patch  B.  Wessels,  46   Mich.  249;  accompaniaments,    served   a  copy  of 

Adler  v.  Roth,  2  McCrary,  445.  the  attachment  and   summons  on  tlie 

^  Miles  «.  Brown,  38  N.  Y.  6up.  Ct.  defendant,  and  told  a  workman  near 

400.  by  to  look  after  the  articles  and  tell 


METHOD    OF    SEIZING. 


177 


Certainly  such  acts  would  not  be  of  avail  in  competition  with 
a  second  attachment  actually  made  and  the  goods  legally- 
retained  by  the  otHcer  or  by  a  kee])er  duly  appointed.  A  seiz- 
ure may  be  good  with  respect  to  the  defendant  yet  not  as  to 
third  persons;  it  may  have  radical  defects  as  an  attachment, 
yet  hold  good  against  purchasers  from  tlie  defendant  thereafter, 
60  as  to  sustain  the  charge  that  they  bought  with  knowledge 
of  the  attjichment. 

"When  property  has  already  been  attached  and  is  in  the  law- 
ful possession  of  the  sheriff,  a  second  attacher  cannot  take  it 
from  him.i  And  there  is  no  need  for  such  taking,  since  the 
property  is  already  safe  in  the  custody  of  the  law,  and  the 
second  attacher  is  fully  protected  in  his  rights. 

Interests  may  be  such  as  to  be  susceptible  of  only  construc- 
tive seizure;  but  the  general  rule  may  be  expressed  in  brief, 
that  the  attachment  of  movable  property  is  its  actual  seizure 
under  the  writ,  and  the  transfer  of  its  possession  and  control 
from  the  defendant  to  the  officer  who  must  continue  his  legal 
custody  of  it  in  order  to  maintain  tlie  validity  of  the 
attachment.  2 


any  intermeddler  that  they  were  at- 
tached; and  this  seizure  was  held 
good  as  against  purchasers  from  the 
defendant  with  knowledge.  Rogers 
».  Gilmore,  51  Cal.  30'J. 

1  Benson  v.  Berry,  55  Barb.  620. 

2Rix«.  Silknitter,  57  Iowa,  262; 
Scott -y.  Davis,  26  La.  Ann.  688;  Lane 
V  Jackson,  5  Mass.  157;  Gale  v. 
Ward,  14  Mass.  352;  Baldwin  v. 
Jackson,  12  Id.  131;  Ashmun  v.  Wil- 
liams, 8  Pick.  402;  Hemmenway  v. 
Wheeler,  14  Pick.  408;  Sanderson  t). 
Edwards,  16  Pick.  144;  Bruce  v. 
Holden,  21  Pick.  187;  Sutherland  «. 
Peoria  Bank,  78  Ky.  250;  Lyon  v. 
Rood,  12  Vt.  233;  Blake  v.  Hatch,  25 
Vt.  555;  Taintor  v.  Williams,  7  Ct. 
271 ;  Huntington  v.  Blaisdell,  2  N.  H. 
317;  Dunklee  v.  Fales,  5  N.  H.  527; 
Cliadbourne  v.  Sumner,  16  N.  H. 
129;  Smith  t).   Orser,   43   Barb.    187; 

12 


Learned  v.  Vanderburgh,  7  How.  Pr. 
379;  State  v.  Cornelius,  5  Oregon, 
46;  Stockton  v.  Downey,  6  La.  Ann. 
581;  Woodworth  v.  Lemmerman,  9 
La.  Ann.  524;  Netson  v.  Simpson,  Id. 
311;  Gates  ®.  Flint,  39  Miss.  305; 
Patch  V.  Wee.sels,  46  Mich.  249 ;  San- 
ford  V.  Boring,  12  Cal.  539;  Lovejoy 
V.  Hutchins,  23  Me.  272;  Waterhouse 
v.  Smith,  22  Id.  337 ;  Nichols  v.  Pat- 
ten, 18  Id.  231;  Counell  v.  Scott,  5 
Ba.xter,  505;  Brooks  v.  State,  Id. 
007 ;  Culver  v.  Rumsey,  6  111.  App. 
598;  same  title,  7  111.  App.  422.  In 
Vermont,  however,  the  possession, 
though  it  must  be  continuous  as 
above  stated,  may  be  constructive: 
Rogers  v.  Fairlield,  36  Vt.  641 ;  Paul 
v.  Burton,  32  Id.  148 ;  Strickland  «. 
Martin,  23  Id.  484;  Bucklin  v. 
Cramptou,   20  Id.  261. 


178  ATTACHING. 

The  process  sliould  be  served  upon  tlie  person  in  possession 
at  the  time  of  the  seizure. ^  Such  person  may  be  tlie  debtor 
himself  or  some  person  in  his  em])loy  holding  not  as  a  legal 
possessor  in  his  own  right  who  can  be  reached  only  by  garnish- 
ment. The  diiference  between  the  possession  by  a  clerk, 
employee  or  servant  of  the  defendant  and  that  by  one  who 
holds  under  contract  as  the  legal  possessor  for  a  stipulated  time, 
is  sufficiently  apparent.  In  the  first  case,  the  lawful  possession 
is  in  the  defendant  and  the  property  may  be  directly  attached, 
process  being  served  on  him  and  the  employee  immediately 
holding:  in  the  second,  the  lawful  possession  is  in  the  person 
liable  to  garnishment,  as  above  mentioned. 

There  sliould  be  enough  taken  under  the  writ  to  satisfy  the 
plaintiff's  demand,  and  the  officer  who  takes  too  little  when  he 
might  attach  a  sufficient  quantity  of  goods  or  other  property 
to  pay  the  defendant's  debt  is  liable  to  the  plaintiff. ^  There 
should  not  be  too  much  taken,  lest  the  defendant  complain. 
He  might  rightfully  complain  if  the  goods  or  other  property  at- 
tached should  be  greatly  excessive,  and  he  would  have  a  remedy 
for  his  wrong  in  an  action  against  the  officer.  So  liere  is  the 
officer,  between  the  rock  and  the  gulf.  He  is  responsible  to 
both  parties  for  sound  and  reasonable  discretion  in  performing 
his  duty. ^      His  safety  is  in  steering  straight. 

A  sheriff  or  his  deputy,  in  making  a  levy  under  a  writ  of 
attachment,  may  use  such  force  as  necessity  will  justify.  The 
deputy  may  be  obliged  first  to  show  his  authorization,  unless  he 
is  already  known  as  a  public  officer  duly  empowered  to  execute 
such  a  w^rit.  In  other  respects,  his  powers,  as  to  the  use  of 
force,  are  as  great  as  those  of  his  principal  officer,  when  it  is 
bis  duty  to  make  a  levy.  Though  violence  may  not  be  done  to 
the  debtor's  castle,  the  dwelling  where  he  resides  with  his 
family,  there  is  not  the  same  sacredness  attached  to  his  store  or 
out-buildings,*     To    make  an    attachment,  the    sheriff  cannot 


1  Grieff  v.  Betterton,  18  La.  Ann.  Dewitt  v.  Oppenheimer,  51  Tex.  103. 

349.  *  Messner  v.   Lewis,  20  Tex.  221 ; 

niansom  «.  Halcott,  18   Barb.  56;  Fulleiton  v.  Mack,   2  Aikens,  415; 

Howes  t\  Spicer,  23  Vt.  508.  Burton    v.    Wilkinson,    18    Vt.  186; 

3  Fitzgerald  v.  Blake,  42  Barb.  5 13 ;  Piatt  v.  Brown,  10  Pick.  553. 


METHOD    OF    SEIZING.  17'J 

hrenlv  into  a  dwelling.  An  oiit-lionse  may  be  opened  witliout 
first  reqnesting-  the  debtor  to  unlock  the  door,  though  such 
request  is  necessary  before  breaking  open  a  barn  or  other  build- 
ing adjoined  to  the  dwelling.  A  store  or  warehouse  may  be 
broken  open  to  reach  goods  to  be  attached,  wlien  the  store 
keeper  renders  such  action  necessary  by  refusing  admittance^i 
Upon  entering  a  store,  either  by  force  or  otherwise,  the  officer 
should  remain  no  longer  than  may  be  reasonably  necessary  to 
perform  his  trust. 2  Should  he  unnecessarily  expel  the  owner, 
or  exclude  him  from  his  place  of  business  for  au  unreasonable 
time,  the  officer  would  be  liable  in  damages. ^ 

The  sheriff,  in  executing  an  attachment  writ,  may  open  the 
safe  of  a  trust  company,  and  the  box  of  the  defendaut,  to  seize 
and  take  into  custody  securities  and  other  valuables  there 
deposited.  4  He  should  not  resort  to  force,  however,  in  execut- 
ing such  a  delicate  trust,  before  first  requesting  the  proper  offi- 
cer of  the  trust  company  to  unlock  the  safe  for  him,  and  also 
requesting  the  debtor  to  open  his  own  box  if  the  latter  is  prac- 
ticable. 5 

An  officer  is  not  only  liable  to  damages,  and  to  have  his  service 
of  writ  invalidated  by  his  breaking  the  front  door  of  the  delitor's 
dwelling,  but  also  by  breaking  the  inner  doors  leading  to  rooms 
rented  by  sub-tenants,  when  such  rooms  are  of  such  a  character 
as  to  constitute  the  dwelling  house  of  the  occupants.     Build- 

*  Burton  et  nl.  v.  Wilkinson  H  al.  18  made  by  means  of  it  is  invalid.  And 
Vt.  189,  citing  Penton  v.  Brown,  1  the  following  authorities,  bearing  on 
Keb.  698 ;  Haggerty  v.  Wilber,  16  the  point,  pro  and  con,  were  cited  and 
Johns.  287.  discussed  by  C.  J.  Shaw:     Bac.  Abr. 

-  AVilliams  0.  Powell,  101  Mass.  467 ;  Sheriff,  N.  3 ;  Seyraaue  v.  Gresham,  5 

Malsom  ®.  Spoor,  12  Met.  279.  Pep.   93;    Lee  v.   Gansel,    Cowp.  1 ; 

2  Perry  «.  Carr,  42  Vt.  53.  Heminway  v.  Saxton   et  al.  3   Mass. 

*  U.  S.  V.  Graff,  67  Barb.  304.  222 ;  Widgery  v.  Haskell,  5  Mass.  155 ; 
5  Held  in  Ilsley  v.  Nichols  et  al.  13  Luttin  ■B.Benin,  11  Mod.  50;  Barlow 

Pick.  270,  that  if  a  civil  officer  breaks  v.  Hall,  2  Anstr.  462;  Loveridge  v. 
open  a  dwelling  house  by  forcing  the  Plaistow,  2  H.  Bl.  29;  Birch  v.  Prod- 
outer  door,  against  the  prohibition  of  ger,  4  Bos.  &  Pul.  135;  Lyford  v. 
the  owner  with  the  direct  and  avow-  Tyrrel,  1  Anstr.  85;  Wells  v.  Gurney, 
ed  purpose  of  making  an  attachment  8  Barn.  &  Cressw.  769 ;  Ex  parte  AVil- 
of  the  owner's  goods  in  the  dwelling  son,  1  Atk.  152.  Many  of  the  same 
house,  such  breaking  is  not  only  an  cases  are  reviewed  in  Tlie  People  v. 
unlawful     act,    but    the   attachment  Hubbard,  24  Wendell,  370:  Cowen.J. 


180  ATTACHING. 

ings  rented  in  flats  may  serve  fur  illnstration.  Eacli  flat  is  aa 
sacred  as  any  resident's  separate  castle.  There  may  be  a  com- 
mon entrance,  a  common  hall,  and  some  other  parts  of  the 
building  may  be  used  in  common;  but  each  particular  flat  is 
the  home  of  a  family,  and  therefore  is  inviolable  as  any  separate 
dwelling  house.  ^ 

The  rule  is  that  a  levy  is  not  to  be  effected  by  committing  a 
trespass;  and  that  the  trespasser  may  not  only  be  punished  for 
his  oflfense  but  the  civil  act  performed  by  means  of  the  trespass 
will  be  invalidated,  though  there  be  no  other  reason  for  settino^ 
it  aside.  2 

It  is  commonly  said  that  the  attaching  ofllcer  must  make 
himself  liable  for  trespass  in  levying  upon  personal  property, 
but  for  the  protection  given  by  the  writ;  or,  in  other  words, 
that  he  must  do  such  acts  as  would  render  him  liable  as  a 
trespasser  if  not  thus  authorized.  He  might  be  obliged  to 
do  acts,  if  resisted,  which  would  be  not  ordinarily  justifl- 
able  in  order  to  obtain  and  maintain  possession  and  control. 
While  it  is  true  that  a  "paper  levy"  is  nugatory,  and  a  mere 
declaration  that  goods  are  seized  is  ineffectual,  yet  there  is  no 
need  of  manipulation  or  any  harsh  taking,  where  there  is  no 
3*esistance  made.  There  ought  to  be  an  inventory  or  proper 
description  of  that  which  is  attached,  and  complete  change  of 
custody.  Even  if  the  person  in  charge  of  the  property  before 
seizure  shonld  renuxin  in  charge  thereafter,  it  should  be  as  the 
appointed  keeper  that  he  subsequently  holds.  But  no  ]evj  is 
valid  unless  the  ofticer  gets  legal  possession;  and  get  it  he  must 
though  acts  ordinarily  deemed  trespass  become  requisite. ^ 

Attachment  eftected  by  trick,  treachery,  fraud  or  trespass  is 
reprobated  by  the  courts  and  held  of  no  legal  force.  The  wrong- 
doing officer  not  only  exposes  himself  to  an  action  in  damages 

1  Swain  n.  Mizner,  8  Gray,  183,  Johns.  287;  Bailey  v.  Adams,  14 
(cited  for  the  principle,  though  not  Wend.  201 ;  Henry  v.  Quackenbnsh, 
the  illustration.)  48   Mich.   415;  Abranis   v.  Johnson, 

2  Baily  v.  Wright,  39  Mich.  96.  65  Ala.  463 ;  Cobb  v.  Gage,  7  Ala.  619 ; 

3  Rix  &  Stafford  v.  Silivnitter,  57  Cawlhorne  v.  McGraw,  9  Ala.  519; 
ToAva,  265 ;  Allen  v.  McCalla,  25  Iowa,  Foster  v.  Mabe,  4  Ala.  402 ;  Goode  v. 
464;  Polley  v.  Lenox  Iron  Works,  15  Longmire,  35  Ala.  668; 

Gray,   513;    Haggerty  v.  Wilber,  16 


METHOD    OF    SEIZING.  ISl 

for  liis  cnniiing  ai)d  rascally  maneiivres,  but  he  also  strikes  Ins 
own  act  with  illegality,  so  that  the  plaiutitf  cannot  avail  him- 
self of  a  seizure  so  made,  though  not  personally  privy  to  the 
officer's  methods.  And  when  the  plaintiff  himself  is  the  trick- 
ster or  the  trespasser  by  means  of  deception  practiced  on  the  offi- 
cer to  induce  him  to  do  things  smart;  or  is  a  co-worker  with  the 
latter  in  executing  a  legal  writ  in  an  illegal  way  so  as  to  create 
a  nullity,  both  are  responsible  to  any  injured  party,  and  the 
writ  is  as  though  it  had  never  been  executed  at  all.i  If  the 
plaintiff,  however,  is  not  an  instigator  or  encourager  of  the  offi- 
cer in  acts  of  deception,  intrigue  or  trickery,  he  ought  not  to 
lose  the  benefit  of  the  attachment,  but  the  officer  alone  should 
be  held  responsible.  The  court  will  always  judge,  from  the 
circumstances  of  each  particular  case,  whether  the  official  wrong- 
doing was  such  as  to  invalidate  the  levy.2 

The  sheriff  may  deputize  a  disinterested  person  to  act  in  his 
stead,  but  he  cannot  authorize  the  plaintiff  himself  to  make  the 
levy. 3  If  the  property  is  in  the  hands  of  the  defendant,  the 
reasons  are  many  and  manifest  why  the  plaintiff'  should  not 
serve  the  summons  and  make  the  levy  in  his  own  behalf.  If 
the  creditor  is  attaching  what  is  already  in  his  own  hands,  he 
has  no  occasion  to  summon  himself,  interrogate  himself  as 
garnishee,  or  do  any  like  supererogatory  act.*  No  interested 
person  can  lawfully  serve  the  w^rit  or  make  the  levy — not  even 
the  sheriff  himself  if  he  is  interested. ^ 

A  copy  of  the  order  of  the  attachment  is  generally  required 
to    be  left  with   the   person   in  possession  of  the  premises    on 

»  Upton  V.  Craig,  57  111.  257 ;  Lesh-  441.  See  Hollister  v.  Goodall, 8  Ct.  332. 
er  V.  Getman,  30  Minn.  321;  Pomroy  ^  Hitchcock  v.  Holmes,  43   Ct.  528. 
V.  Parmlee,  9  Iowa,  140;  Herring  v.  An  officer  got  into  a  dwelling  by  pre- 
Hoppock,  15  N.  Y.  409;   Timmons  «.  tending  that  he   wanted   to  see  th© 
Garrison,  4  Humph.   148;    Deyo  v.  debtor's    mother-in-law,   and,   when 
Jennison,  10   Allen,   410;  Metcalfe.  in,  attached   the   furniture.     It  was 
Clark,  41  Barb.  45;  Nasou  v.  Esten,  2  held  that  the  entiy  was  lawful. 
K.   1.337;  Powell   v.   McKee,  4   La.  '  Dyson  t;.  Bakei ,  54  Miss.  24.     But 
Ann.  108;   Paradise  «.  Farmers'  and  see,  as  to  authorizing  a  deputy,  Men- 
Merchants'  Bank,  5  Id.  710;  Wingate  derson  v.  Specker,  79  Ky.  509. 
V.  Wheat,  6  Id.  238 ;  Myers  v.  Myers,  *  Graigle  v.  Notnagel,  Pet.  246. 
6  Id.  309 ;  Gilbert  v.  Hollinger,  14  Id.  *  Dyson  v.  Baker,  54  Miss.  24. 


1S2  ATTACHING. 

■\vliom  tlie  writ  is  served;  and,  tlie   omission   of  tin's  has   been 
held  fatal,  1  though  it  should  rather  be  treated  as  an  irregularity.  2 

Sec.  7.    Time  of  Seizing. 

The  writ  has  till  the  return  day  to  run,  but  it  is  the  duty  of 
the  officer  in  charcre  of  it  to  serve  it  on  the  dav  he  receives  it, 
or  as  soon  as  practicable,  unless  instructed  or  permitted  by  the 
plaintiff  to  make  delay,  or  unavoidably  hindered  in  some  way. 
It  is  true  that  in  many  cases  no  evil  arises  from  a  little  procras- 
tination. If  the  debtor  is  honest,  or  the  property  not  portable, 
or  there  are  no  competing  creditors,  the  execution  of  the  writ 
on  the  last  day  of  its  term  might  suffice;  but,  in  such  a 
conjunction  of  circumstances,  there  is  hardly  any  need 
for  such  writ  at  all.  An  ordinary  suit  might  result  in 
judcrment  soon  enough;  and  then  the  issue  of  an  execution 
would  preclude  the  necessity  for  an  ante-judgment  attachment. ^ 

Should  the  plaintiff  suffer  loss  by  the  unnecessary  dallying 
of  an  officer,  he  ought  to  be  recompensed  therefor  in  damages, 
though  the  b'mit  of  the  time  for  the  return  may  not  have 
arrived.  But  the  officer  is  not  bound,  under  ordinary  circum- 
.'^tances,  to  proceed  with  any  unusual  degree  of  celerity.  If  the 
M'rit  is  placed  in  his  hands  late  in  the  day,  he  may  await  till  the 
following  day  before  making  the  levy,  though  it  is  possible  to 
perform  the  duty  immediately.  He  might  not  be  subjected  to 
damages,  under  ordinary  circumstances,  should  he  delay  for 
several  days  when  busy  with  other  official  duties, if  the  plaintiff 
makes  no  request  for  immediate  or  early  action,  and  if  the  offi- 
cer knows  of  no  reason  why  he  should  avoid  such  delay;  but, 
in  such  case,  he  takes  the  risk  should  the  plaintiff  suffer  loss 
by  the  procrastination. 

When  immediate  action  is  urgent,  and  the  plaintiff  instructs 
the  officer  to  execute  the  writ  immediately  upon  property  which 
he  points  out — upon  a  steamboat  just  about  to  leave  the  wharf 
for  a  trip  beyond  the  State  lines,  for  instance — it  is  the  duty  of 

1  Sparp  V.  Baird,  43  Cal.  577.  «  Scheib  v.  Baldwin,  22  How.  Prac. 

2  Wilkins  v.  TourtelloU,   28  Kan.      R.  278. 


TIME    OF    SEIZING.  1S3 

the  officer  to  proceed  witli  sueli  dispatch  as  is  coinpatible  witli 
good  and  secure  work,  notwithstanding  the  many  remaining 
days  within  which  the  writ  is  returnable.  Even  if  the  pLaintitf 
has  not  urged  such  celerit}^  but  has  pointed  out  tlie  property  to 
be  seized,  the  officer  ought  to  move  with  reasoiuxble  dispatch  if 
he  knows,  tliough  the  plaintiff  .does  not,  that  in  case  of  a  few 
hours  dehiy  the  object  of  pursuit  would  probably  elude  his 
grasp. 

The  time  of  executing  is  not  only  important  with  reference  \ 
to  the  possible  removal  of  his  property  by  the  debtor  in  case  of 
the  officer's  delay,  but  also  with  regard  to  priority  of  lien  when 
there  are  competing  attachments.  So  far  as  the  defendant  is 
concerned,  the  levy  on  the  last  day  of  the  writ's  duration  is 
just  as  effectual  as  on  the  lirst;  and,  even  after  the  expiration 
of  the  specified  time,  an  attachment  may  serve  its  purpose  as  to 
him,  if  he  should  not  have  it  dissolved  prior  to  judgment  and 
make  way  with  his  property  before  judgment  and  seizure  under 
execution.^ 

Levy  is  too  late  if  made  after  notice  of  insolvency  proceed- 
ings against  the  debtor  has  been  published, 2  although  the  writ 
may  yet  have  several  days  to  run;  and  it  is  always  too  late  if 
made  after  the  return  day.  3  The  officer  ought  not  to  wait  till 
the  time  has  nearly  expired,  but  should  proceed  with  reasonable 
celerity,  even  though  not  specially  urged  by  the  attaching  credi- 
tor, that  he  may  not  only  have  the  satisfaction  of  having 
])romptly  done  his  duty  but  also  that  he  may  avoid  personal 
liability  in  case  the  intended  seizure  should  slip  his  fingers;^ 
for  the  officer  may  render  himself  liable  to  the  plaintiff  for  loss 
caused  by  tardiness  in  moving,  though  the  writ  may  yet  have 
considerable  time  to  run.^  He  is  not  expected  to  be  on 
the  alert  at  unseasonable  hours,  between  midnight  and  day,^ 
unless  specially  advised  that  extraordinary  vigilance  and  energy 

'  In  Indiana,  held  that  attachment  ^  Peters  v.   Conway,  4  Bush,  5C6; 

writs  there  run  till  executed,  or  till,  Dame  v.  Fales,  3  N.  H.  70. 

with  reasonable  diligence,  they  may  *  Kennedy  v.  Brent,  6  Cr.  187. 

be  executed.     Will    v.   Whitney,   15  ^  Id. 

Ind.  194.  6  Whitney  v.    Butterfield,   13  Cal. 

2  Gallup  V.  Robinson,  11    Gray,  20.  335. 


184  ATTACHING. 

are  necessary  to  prevent  tlie  removal  of  the  delator's  propert}^  at 
such  hours,  or  for  the  purpose  of  the  plaintiff's  gaining  priority 
of  rank  among  creditors. 

It  was  held,  under  the  New  York  Code  of  Civil  Procedure, 
§  §  638,  788,  which  required  service  of  summons  "witliin 
thirty  days  after  the  granting  thereof,"  that  Sunday  niust 
be  excluded  when  it  is  the  thirtieth  day,  and  tliat  the  service 
may  be  made  on  the  Monday  following.^ 

The  subject  of  attaching  with  reference  to  the  time  of  seizing 
will  necessarily  be  further  discussed  in  treating  of  priority 
of  liens. 


Sec.  8.    Wrongful  Levy. 

The  writ  is  not  usually  directed  against  particular  things  but 
against  the  alleged  debtor's  effects  in  general.  The  plaintiff 
may  point  out  particular  property  of  the  defendant  and  instruct 
the  officer  to  attach  it,  but  if  it  should  turn  out  that  the  thing 
thus  pointed  out  and  seized  does  not  belong  to  the  defendant, 
both  the  plaintiff  and  the  seizing  officer  would  be  liable  for  the 
wrong  done. 2  The  instructions  would  be  a  protection  to 
the  officer,  between  himself  and  the  plaintiff  ;3  but  not 
between  himself  and  the  injured  party.  The  third  person 
whose  property  is  wrongfully  attached  as  t'lat  of  the  defend- 
ant has  his  action  for  damage  against  the  officer,  or  the  plain- 
tiff, or  both,  as  the  nature  of  the  wrong  done  may  indicate, 
whether  he  has  intervened  in  the  attachment  suit  to  protect  his 
property  or  not;^  whether  he  has  demanded  of  the  officer  a 
release  of  the  property  or  not;^  whether   he  has  received  the 

1  Gribbon  v.  Freel,  93  N.  Y.  93.  443;  Battis  v.  Hamilton,  23  Wis.  6G9; 

2  Conoer  v.  Long,  104  TJ.  S.  229;  Union  Lumbering  Co.  c.Tronson,  30 
Marsh  v.  Backus,  IG  Barb.  483;  Tufts  Id.  126;  Halpine  v.  Hall,  42  Id.  176; 
V.  McClintock,  28  Me.  424;  Kichard-  Lesher  v.  Getman,  30  Minn.  321. 

son  V.  Hall,  10  Md.  399.  *  Trieber  v.   Blacher,    10  Md.  14  ; 

3  Page  V.  Belt,  17  Mo.  263;  Conner  Sliufl"  v.  Morgan,  9  Martin,  (La.)  592. 
v.  Long,  104  U.  S.  229;  Griffith  v.  ^Bodega??.  PerKerson,  GO  Ga.  516; 
Smitli,  22  Wis.  046 ;  Gower  v.  Emery,  Stickuey  v.  Davis,  16  Pick.  19. 

18  .Me.  79 ;  Nelbon  v.   Cook,   17   111. 


WKONGFUL    LEVY.  185 

property  of  the  officer  and  given  bond  for  its  delivery  upon 
demand,  or  not.^ 

Tlie  attacliing  officer  is  bound  to  use  all  reasonable  diligence 
in  ascertaininii:  tliat  the  ])roperty  he  is  about  to  seize  belongs 
to  the  defendant  and  is  liable  for  the  debt;  he  sliould  inal<e 
thorough  inquiry  and  learn  with  as  great  a  degree  of  certainty 
as  possible  that  the  property  is  attachable,  since,  otherwise,  he 
seizes  at  his  peril. ^  lie  should  inquire  of  the  person  in  charge 
of  ]iersonal  property,  as  to  its  ownership.  ^ 

The  seizing  officer  is  not  liable  as  a  trespasser  when  he  does 
his  whole  duty  and  yet  some  wrong  ensues  which  is  beyond 
possible  forecast  and  beyond  his  control.  If  he  makes  all 
requisite  inquiry,  uses  all  legal  precaution  against  error  and 
all  reasonable  diligence,  he  ought  not  to  be  subjected  to  the 
reparation  of  damages  not  resulting  from  his  fault.  Officeis 
are  human,  and  the  law  does  not  hold  them  responsible  for  lack 
of  infallibility.  Doing  the  best  possible  under  the  circum- 
stances of  any  particular  case,  and  acting  with  perfect  imj^ar- 
tiality  between  the  parties  and  with  entire  respect  for  the 
rights  of  others,  a  seizing  officer  should  be  treated  with  leniency 
even  when  through  error  of  judgment  or  ignorance  of  fact 
after  due  inquiry  he  should  cause  damage  to  another.  Under 
such  circumstances,  he  may  be  legally  responsible,  but  he  ought 
to  have  liberal  consideration  by  court  and  jury."* 

There  are  many  cases  in  which  it  is  very  difficult  for  the 
most  astute  inquirer  to  ascertain  whether  certain  property 
belongs  to  the  debtor  or  not.     He  may  be  baffled  in  his  investi- 

1  Turners.  Lytle,  59  Md.  199,  un-  v.  Brown,  15  Me.  185;  Sangster  v. 
der  act  of  1876 ;  Johns  «..  Church,  12  Commonwealth,  17  Grat.  124;  Coo- 
Pick.  557;  Robinson  v.  Mansfield,  13  per  v.  Newman,  45  N.  H.  339;  Meade 
Id.  139.  V.  Smith,  16  Ct.  346 ;  Lynd  v.  Pickett, 

2  Carlton  v.  Davis,  8  Allen,  94;  7  Minn.  184;  Caldwell  v.  Arnold,  8 
Morrill  I).  Keyes,  14  Id.  222;  Gilman  Minn.  205;  Ford  v.  Dyer,  26  Miss. 
V.  Hill,  36   N.    H.   311 ;  Richards  v.  243. 

Daggett,  4  Mass.  534 ;  Gibson  v.  Jen-  ^  Hildreth  v.  Fitts,  53  Vt.  684. 

ny,  15  Id.  205;  Smith  v.   Sanborn,  6  *  Luce  o.  Hoisiugtou,   54  Vt.   428; 

Gray,   134;   Howard  v.  Williams,  2  Barrett  «.  White,  3  N.  H.  210;  Tay- 

Pick.  80;  Woodbury  ■».  Long,  8  Id.  lor  «.  Jones,  42  Id.   25;  Wakefield  o. 

543;  Bean  v.   Hubbard,  4  Cush.  85;  Fairman,  41  Vt.  339. 
Foss. -B.  Stewart,  14   Me.  312;  Sibley 


18G  ATTACHING. 

gation  by  false  statements  on  the  part  of  the  defendant  or  of 
some  next  friend  who  is  trying  to  cover  the  property  to  prevent 
its  seizure.  In  the  heat  of  contention,  men  sometimes  yield  to 
temptation  to  falsity  and  convey  wrong  impressions  to  a  seizing 
officer,  and  try  to  satisfy  their  consciences  with  the  erroneous 
assumption  that  all  is  fair  in  war. 

Even  though  the  third  possessor,  whose  lawful  possession  has 
been  disturbed,  may  have  had  the  property  returned  upon  his  giv- 
ing a  receipt  therefor,  and  promising  that  it  should  be  forthcom- 
ing to  satisfy  the  attaching  creditor's  judgment  should  the  court 
decree  it  liable,  he  will  have  his  action  against  the  officer  for 
trespass,  if  the  attachment  was  wrongful. i  He  will  have  his 
action,  wdiether  he  has  receipted  for  the  goods  or  not.  The 
officer  is  liable  for  seizing,  in  a  carrier's  hands,  goods  not  the 
defendant's,  and  refusing  to  surrender  them: 2  the  refusal  to 
restore  aggravating  the  trespass,  though  he  ought  not  to  be 
judged  harshly  when  he  has  attached  in  good  faith  and  has 
relinf[uished  with  ready  good  will  as  soon  as  he  was  credibly 
informed  of  his  mistake.  He  would  not  be  liable  to  the  third 
person  so  disturbed  in  possession,  if  he  was  led  into  his  mistake 
by  such  person  himself;  nnd  if  the  plaintiff  induced  the  error 
by  pointing  out  the  property  as  that  of  the  defendant,  he  would 
be  bound  to  indemnify  the  officer  for  whatever  the  injured 
third  party  had  recovered. 

If,  notwithstanding  the  existence  of  a  lien  upon  goods,  (such 
as  that  of  a  carrier  for  freight,  with  the  right  of  possession  till 
the  lien  shall  be  removed,)  an  officer  attach  them,  the  levy  may 
be  legal  upon  the  condition  that  the  attachment  is  to  be  dis- 
solved and  the  goods  restored  to  the  carrier  or  other  lawful 
custodian,  if  the  freight  or  lien-debt  is  not  paid  within  some 
fixed  time.  The  officer  cannot,  if  sued  for  trespass,  set  up  the 
invalidity  of  the  attachment  by  reason  of  such  lien.^  The  com- 
mon carrier  is  entitled  to  freight  and  other  lawful  charges 
before  goods  in  transitu  can  be  legally  seized  and  taken   from 

1  Williams  v.  Morgan,  50  Wis.  548;  penter  v.  Dresser,  72  Me.  377. 

Perry  v.  Williams,  39  Wis.  339;    Ro-  2  Rodega  1).  Perkerson,  GO  Ga.  516. 

l)jnson  «.    Mansfield,    13  Pick.  139;  »  Stearns  «.  Dean,  129  Mass.  139. 
Morse  v.  Ilurd,   17   N.  H.  34G;  Car- 


"WKONGFUL    LEVY.  187 

his  possession  in  a  suit  against  tlieir  owner. ^  If  the  attacli- 
ment  of  such  goods  were  authorized  by  statute,  the  carrier's 
lien  would  still  rest  upon  tliein,  and  the  creditor's  right  would 
he  subordinate. 

It  is  trespass  to  execute  a  writ  of  attachment  upon  property 
not  attachable. 2  Indeed,  the  oflieer  can  hardly  invest  himself 
uith  the  possession  of  property  belonging  to  auotlier  without 
doing  that  which  would  amount  to  trespass  were  he  not  under 
the  protection  of  the  law  and  acting  as  its  agent  in  executing 
its  process.  3  He  could  be  little  liable  to  the  defendant  for 
laying  a  second  attachment  on  personal  property  already  in  his 
hands,  when  the  second  was  under  a  writ  against  the  same 
defendant  to  whom  the  Urst  was  opposed;  for,  if  the  defendant 
is  wronged  by  being  deprived  of  his  property,  tlie  wrong  must 
have  been  done  in  the  execution  of  the  first  writ,'* 

Every  taking  of  another's  property  in  the  act  of  levying 
upon  the  defendant's  goods,  is  not  either  an  attachment  of  it  or 
a  trespass.  The  ofticer  may  have  to  take  temporarily  in  hand 
the  unattaehable  vessel  in  which  the  attachable  goods  are  con- 
tained; or  remove  the  contents  of  a  vessel  that  is  to  be  attached, 
etc.,  without  committing  any  trespass  or  any  wrong;  or  he  may 
take  goods  of  another  when  found  as  part  of  the  common  stock 
of  the  defendant,^  to  separate  them  from  tlie  stock. 

How  can  a  sheriff  always  accurately  distinguish  between  the 
defendant's  property  and  that  of  others  when  both  are  inter- 
mixed?    Sometimes  he  may  attach  the  mass,  after  all  required 

'  Wolfe  ■».  Crawford,  54  Miss.  514.  Iowa,  265;  Camp  v.  Chamberlain,  5 

2  Ladd  V.  Hill,  4  Vt.  164;  AVhite  v.  Denio,  198;  McBurnie  v.  Overstreet, 
Morton,  22  Yt.  15;  Bean  v.  Hubbard,  8  B.  Monroe,  300;  Beekman  &  Lan- 
4Cusb.  85;  Lynd  «.  Picket,  7  Minn.  sing,  3  Wend.  446;  Westervelt  v.  ■ 
184;  Richards  v.  Daggett,  4  Mass.  Pinckney,  14  Id.  123;  Good  «.  Long- 
534;  Gibson  P.  Jenny,  15  Id.  205;  mire,  35  Ala.  G68 ;  Allen  «.  McCalla, 
"Melville  fi.  Brown,  Id.  79;  Howard  25  Iowa,  464;  Haggerty  «.  Wilbur, 
r.  Williams,  2  Pick.  SO;  Eldridge  v.  16  Johns.  287. 

Lancy,  17  Pick.  352;  Walker  t\  Fitts,  *  Luce  v.  Hoisington,  54  Vt.  428. 

24  Id.  191 ;  Cooper  v.  Newman,   45  ^  Franklin  v.   Gumersell,    11   Mo, 

TSr.  H.  339;  Foss  v.  Stewart,  14  Me.  App.  300;    Hewes   v.   Parkman,    20 

'^12;  Bradley  v.  Arnold,  16  Vt.  ?82.  Pick.  90;  Towns  v.  Pratt,  33   N.  H. 

3  Henry  v.  Quackenbush,  48  Mich.  345. 
415;  Rix  »!c  Stafford  d.  Silknitter,  57 


188  ATTACHING. 

effort  to  distini^uisli  the  one  part  from  the  other,  or  wlien  the 
compound  is  of  a  nature  to  render  the  ingredients  indistin- 
guishable; and  he  must  show  sucli  fact  in  liis  i^eturn.i  He  is 
bound  to  separate  the  defendant's  from  the  other's  portion,  and 
to  avoid  the  attachment  of  the  latter,  or  to  give  it  up  after 
seizing  and  before  making  his  return,  if  the  owner  thereof 
exibits  to  him  satisfactory  evidence  of  his  ownership  and  the 
part  claimed  is  susceptible  of  separation  from  the  whole. 2  If 
the  confused  goods  are  in  possession  of  a  third  person  who 
owns  them  in  part,  the  situation  would  be  manifestly  different 
from  that  where  the  defendant  is  in  possession;  and  the  officer 
ought  not  to  seize  the  mass  and  take  it  into  custody.  ^  The 
defendant's  portion  could  be  reached  by  garnishment. 

When  tlie  seizing  officer  renders  himself  liable  to  damages 
as  a  trespasser  for  wrongfully  seizing  the  property  of  some 
person  other  than  the  defendant,  in  executing  a  writ  of  attach- 
ment, he  involves  his  sureties  also.'* 

If  attached  j)roperty  is  injured  while  in  the  custody  of  the 
officer  and  through  his  fault,  he  will  be  liable  in  damages  to 
the  owner,  in  case  the  plaintiff  should  relinquish  the  attach- 
ment. ^  If  the  seizing  of  it  is  the  ground  of  complaint,  the 
wrong  should  be  charged  as  done  to  the  property  so  as  to  make 
the  officer  a  trespasser  ab  initio^  not  as  done  to  the  proceeds 
thereof.^  The  damages  for  unlawful  seizure  may  include  loss 
of  business  with  respect  to  goods  seized,  costs  of  defence,  etc.,' 
but  not  always  attorney's  fees.^ 

In  most  of  the  States,  an  action  cannot  be   maintained  on 

1  Sawyer  v.  Men-ill,  6  Pick.  478;  cher  1;.  Noble,  3  Me.  418;  Harris  v. 
Morrill  10.  Keyes,  14  Allen,  232;  Wal-  Hanson,  11  Id.  241;  Commonwealth 
cott  V.  Keith,  2  Fos.  196;  Albee  v.  «.  Stockton,  5  Mon.  192;  Carpenter -y. 
Webster,  IG  N.  H.  862;  Wilson  v.  Dresser,  72  Me.  377;  Van  Pelt  y.  Lil- 
Lane,  33  N.  H.  466.  tier,  14  Cal.  194;  Becker  v.  Dunham, 

2  See  Davis  v.  Stone,  120  Mass.  228 ;  27  Minn.  32. 

Shumway  -y.    Rutter,   8    Pick.   443;  ^  Becker  «.  Bailies,  44  Ct.  167. 

Treat  v.  Barber,  7  Ct.  274.  <>  Bentley  ».  White,  54  Vt.  564. 

^ Id.  ^  Marqueze-B.  Soutlieimer,  59  Miss. 

*  Sangster    v.    Commonwealth,   17  430,  in  exposition  of  Miss.  Code,  18S0, 

Grat.    124;    State  v.   Moore,   19  Mo.  §2340. 

369 ;  People  v.  Schuyler,  4  Com.  173 ;  s  Patton  v.  Garrett,  37  Ark.  605. 
Rodega  v.  Perkerson,  60  Ga.  516 ;  Ar- 


■WRONGFUL    LEVY.  189 

wrongful  attachment,  unless  tlierc  has  been  a  decii^ion  against 
the  plaintilt'  in  the  attachment  suit.^  If  malice  is  charged  in 
such  action,  the  jury  may  presume  it,  if  the  party  cliarged  had 
no  probable  cause  to  believe  the  allegations  he  made  in  his 
affidavit  to  procure  the  attachment. ^  A  judgment  in  favor  of 
the  creditor,  sustaining  the  attachment  made  by  him  of  the 
defendant's  property,  would  obviously  render  a  subsequent  suit 
for  damages  for  wrongful  attachment  by  the  attachment-defend- 
ant against  the  attaching  creditor  both  unnecessary  and  absurd; 
indeed,  such  action  could  be  defeated  at  the  threshold  by  plead- 
ing the  former  judgment. 

But  it  is  not  the  practice  in  all  of  the  States  for  the  defendant 
to  await  the  decision  of  the  attachment  suit  before  claiming; 
damages  for  wrongful  attachment.  In  some,  the  defendant 
may  reconvene,  claiming  damages,  wdien  he  answers  in  the 
attachment  suit.  This  matter  may  be  relegated  to  a  future 
chapter. 

>Swan  V.  McCracken,  7  Lea,  G26.  »  Bozeman  v.  Shaw,  '61  Ark.  160. 


190  GAKNISIIING. 


CHAPTEE   YI. 

GARNISHING:     AND  ATTACHING    IN   THE   HANDS    OF   THIRD 

PERSONS. 

§  1.     Statute  Provisions  for  Garnisti-  §  4.     Assignment,  witli  reference  to 

ment.  Garnishment. 

3.     Property    in    the    Garnisliee'3  5.     Legal  Custodians. 

Hands.  6.     Non-resident    Third    Posses- 

3.     Credits.  sors. 

Sec.  1.    Statute  Provisions  for  Garnishment. 

The  statutes  are  uniform  in  authorizing  the  attachment  of 
tlie  defendant's  credits  and  property  in  the  possession  of  other 
persons.  There  is  not  entire  uniformity  of  method,  nor  is  the 
authorization  so  liberal  in  some  of  the  States  as  it  is  in  most  of 
them.  It  will  be  found  convenient  to  present  the  subject  first 
with  reference  to  the  method  most  generally  employed;  and 
then  notice  some  exceptional  peculiarities,  though  they  are 
governed  by  the  same  principles. 

It  is  generally  under  the  writ  of  attacliment  that  third  per- 
sons are  summoned  as  garnishees  to  answer  under  oath.  ISTot 
only  that  writ,  but  the  affidavit  and  bond  sujjporting  it  suffice 
for  the  purposes  of  the  garnishment;  that  is,  no  additional  writ, 
affidavit  and  bond  are  required  ordinarily  to  have  property 
attached  in  a  third  person's  hands.  The  writ,  having  reference 
to  no  particular  property,  includes  what  the  debtor  owns  but 
does  not  possess  as  M^ell  as  what  he  possesses  and  owns.  The 
process  is  served,  not  by  physically  seizing  the  property  which 
the  garnishee  has,  and  thus  disturbing  his  lawful  possession, 
but  by  attaching  it  in  his  liands,  and  summoning  him  to  ans- 
wer under  oath  whether  he  holds  any  of  the  defendant's  pi-operty 
or  credits,  and  what  he  holds,  with  the  necessary  particulars, 
lie  IS  summoned  to  submit  to  an  examination.     The  attachment 


STATUTE    PKO VISIONS    FOR    GARNISIIMKNT.  191 

takes  place  when  the  suinnioiis  is  served,  if,  upon  examination, 
it  is  ascertained  tliat  tlie  garnishee  then  posbessed  attachable 
things  belonging  to  the  defendant.^ 

Instead  of  foUowintj  the  sninmons  with  an  examination  in 
court  upon  the  garnishee's  appearance,  written  interrogatories 
are  served  upon  him  with  the  summons,  in  many  of  the  States. 

In  Iowa,  the  interrogatories  are  prescribed,  and  the  sheriff 
may  take  the  sworn  answers  of  the  garnishee.  Should  the  latter 
refuse  or  fail  to  respond,  he  may  be  summoned  into  court 
for  examination  as  in  the  manner  above  mentioned.  In  the 
other  States  where  interrogatories  are  served,  the  questions  are 
usually  prepared  by  the  plaintiff,  and  the  garnishee  is  summoned 
to  answer  them  under  oath.  The  lien  thus  created  dates  from 
the  service  of  the  summons  and  interrogatories,  (if  it  turns  out 
that  the  garnishee  has  something  attachable  as  the  defendant's.) 
Indeed,  the  examination  by  means  of  written  interrogatories 
differs  so  slightly  from  the  examination  by  questions  orally  put, 
that  it  will  not  be  necessary  to  distinguish  hereafter  between 
the  two  practices  when  treating  of  the  answers  of  tlie  garnishee. 
The  principles  applicable  to  the  one  form  of  examination  apply 
equally  to  the  other,  except  slight  peculiarities  which  are  not 
confined  to  evidence  in  the  class  of  suits  herein  considered. 

Under  either  form,  the  garnishee  is  questioned  as  a  party 
rather  -than  a  witness.  His  position  is  as  though  he  were 
directly  sued  and  put  to  his  oath  by  his  own  creditor.  One 
who  cannot  be  required  to  testify  as  a  witness  may  be  obliged 
to  answer  as  a  garnishee.  A  M'ife  may  be  garnished  in  a  suit 
against  lier  husband  and  defaulted  for  refusing;  to  answer,  when 
not  liable  to  be  made  a  witness  against  him.^  The  examina- 
tion of  the  garnishee  is  however  governed  by  the  rules  of 
evidence  so  far  as  they  are  applicable. 

In  Florida,  a  copy  of  the  writ  or  M-arrant  of  attachment, 
with  notice  that  the  property  and  credits  of  the  defendant  in 
the  garnishee's  hands  are  attached,  are  left  with  the  garnishee, 
who  is  required  to  furnish  the  sheriff  w^ith  a  description  of  such 
property  and  credits;  and,  in  default  thereof,  he  is  summoned  to 

»  Conley  v.  Chilcote,  25  Ohio  St.  320.      2  Thompson  •;;.  Silvers,  59  Iowa,  670. 


192  GARNISHING. 

answer  on  oath  in  court.  In  Kew  York,  too,  tlie  garnishee 
must  certify  to  the  sheriff  in  like  manner,  or  he  suhjected  to 
examination  under  oath.  If  a  certificate  has  heen  given,  he 
may  yet  be  examined,  when  the  plaintiff  has  made  affidavit  that 
the  certificate  is  untrue.  In  both  the  Carolinas,  the  sheriff, 
under  the  writ  of  attachment,  is  authorized  to  collect  directly 
of  third  persons  what  debts  they  may  owe  the  defendant,  and  to 
attach  what  property  they  may  hold,  liable  to  execution  on  the 
plaintiff's  demand;  and  tliat  officer  may  institute  action  against 
them,  in  his  own  name  or  in  that  of  the  attachment-debtor,  to 
effect  such  purposes, 

JSTo  separate  writ  is  ordinarily  employed  when  third  persons 
are  to  have  the  defendant's  property  and  credits  attached  in 
their  hands,  though  sometimes  one  called  the  "writ  of  garnish- 
ment" is  issued,  as  in  Arkansas  and  Texas.  Under  this  writ, 
garnishees  are  summoned  to  answer  on  oath,  and  the  practice 
conforms  to  that  in  most  general  use. 

A  special  affidavit  is  required  in  order  to  garnishment  in 
several  of  the  States.  In  Kansas,  Michigan,  Minnesota  and 
Nebraska,  the  plaintiff,  wishing  to  attach  his  debtor's  property 
or  credits  possessed  by  designated  third  persons,  must  swear 
that  he  believes  and  has  reason  to  believe  that  they  owe  the 
defendant  or  have  property  of  his.  In  New  Jersey,  the  required 
oath  is  that  the  affiant  believes  the  third  persons  who  have 
denied  liability  before  the  auditor,  have  money  or  gooda  be- 
longing to  the  defendant,  or  are  indebted  to  him;  and  that 
the  affiant  fears  they  will  abscond  before  execution  can  be 
obtained.  In  Wisconsin,  the  affidavit  is  much  like  that  re- 
quired in  Kansas,  Michigan,  etc.  It  is  tlelivered  to  the  sheriff, 
who  must  summon  the  garnishee  to  answer,  under  oath,  such 
interrogatories  as  may  be  propounded,  unless  the  property  held 
by  such  third  persons  may  be  immediately  attached  without 
further  examination. 

The  exceptional  character  of  the  practice  is  not  in  the 
requirement  of  an  affidavit,  (for  all  the  States  require  that  where 
attachment  is  an  extraordinary  process,)  but  in  prescribing  a 
peculiar  one  for  garnishment.  The  affidavit  made  to  get  the 
atta.climent  writ  sent  out  on  a  fishing  commission  to  catch  any 


STATUTE    rilOVISIONS    FOR    GARNISmiENT. 


103 


of  tlie  debtor's  property,  suffices  for  garnisluneut  in  tlie  other 
States. 

AVhen  there  is  no  other  attachment  proceeding  but  that  of 
garnishment  and  tlie  constructive  seizure  of  property  or  credits 
in  the  hands  of  a  tliird  person,  botli  affidavit  and  bond  become 
necessary.  Where  tlie  ancillary  proceeding  is  separate  from  the 
main  action,  the  bond  may  be  required  in  that  proceeding.'' 
The  defendant  in  the  principal  suit  ought  to  be  the  obligee  of 
the  bond;  and  the  garnishee  is  entitled  to  a  bond,  under  some 
statutes,  where  he  is  to  be  immediately  deprived  of  his  posses- 
sion. 

Formerly  it  was  the  general  practice,  that  garnishees  could 
not  be  summoned  to  answer  unless  the  sheriff  had  failed  to 
find,  in  the  defendant's  possession,  property  sufficient  to  satisfy 
the  plaintiff's  demand;  and  this  practice  is  not  everywhere 
abandoned. 

The  trustee  process,  employed  in  the  New  England  States, 
especially  in  Maine,  Massachusetts,  New  Hampshire  and  Ver- 
mont, reaches  the  property  and  credits  of  the  defendant,  held 
by  third  persons,  much  in  the  same  way  as  in  the  other  States, 
under  the  process  of  garnishment. 

It  will  be  seen  that  the  differences  in  the  practice,  in  the 
several  States,  is  so  slight  that  the  subject  of  attachment  in  the 
hands  of  third  persons  may  be  generally  treated.  Xothing 
need  be  here  said  further  of  the  service  of  the  summons  with  a 
copy  of  the  writ  of  attachment.  The  service  is  effected  as  in 
ordinary  cases,  and  due  return  thereof  made  to  the  court.  The 
garnishee  cannot  accept  service.  ^  The  attaching  creditof 
furnishes  the  names  of  the  persons  to  be  garnished,  and  the 
sheriff  proceeds  to  execute  the  writ  without  any  unusual  for- 
mality; but  he  must  conform  to  the  statute.  ^ 

When  interrogatories  must  be  prepared  by  the  plaintiff  and 
filed  in  the  record,  prior  to  the  summons,  the  names  of  those 

1  Burton  v.  Wynne,  55  Ga.  615.  volved:  Freeman  v.  Miller,  51  Tex. 

2  Scliiudler  v.  Smitli,  18  La.  Ann.  443.  See  Nortli  Central  R.  R.  Co.  v. 
476;  Hebel   v.   Amazon  Ins.   Co.  33      Rider,  45  Md.  24. 

Mich.    400.     May    accept    when   no  ^  Norvell  v.  Porter,  63  Mo.  309. 

rights  of  opposing  creditors  are  in- 

13 


194  GARNISHING. 

to  be  interrogated  must  be  inserted  therein,  and  each  garnishee 
must  be  served  with  a  copy,  Tlie  method  of  procedure  and 
the  general  principles  by  which  a  knowledge  of  the  garnishee's 
relations  to  the  debtor  are  ascertained  will  be  presented  in  the 
chapter  on  Charging  the  Garnishee. 

Sec.  2.    Property  in  the  Garnishee's  Hands. 

Actual  possession  of  defendant's  property  subject  to  execu- 
tion for  his  debt  renders  the  possessor  liable  as  a  garnishee.'' 
It  must  be  under  control  so  that  he  be  capable  of  turning  it 
over  on  judicial  demand.  Mere  possession,  without  author- 
ity or  right  derived  from  the  defendant,  directly  or  indirectly, 
to  hold  the  property  for  him  might  give  the  right  of  direct 
attachment,  but  w^ould  give  the  possessor  no  legal  control  over 
it  and  no  right  to  turn  it  over.  "Whether,  in  such  case,  he  ia 
amenable  as  garnishee  must  depend  on  circumstances.  If  with- 
out authority,  but  by  the  sufferance  of  the  owner  he  holds, 
he  ought  to  be  amenable  to  the  process.  ^  If  the  possession  of 
property  is  temporary,  as  that  of  a  hotel  keeper  in  charge  of 
a  guest's  baggage,  or  that  of  a  man  who  has  hired  a  horse  for  a 
ride,  or  that  of  one  who  has  an  article  on  trial  with  the  view  of 
purchasing  it,  such  actual  possession  ought  not  to  subject  the 
holder  to  garnishment,  but  such  articles  should  be  deemed  in 
possession  of  the  owner  and  liable  to  direct  seizure  and  deten- 
tion as  his. 

On  the  other  hand,  though  not  in  actual  possession,  the  right 
to  possess  has  been  thought  to  render  the  third  person,  having 
such  right,  amenable  to  the  process;^  but  this  supposition  must 
not  be  received  without  considerable  qualification. 

Possession  by  the  garnishee  must  be  accompanied  with  privity 
between  the  defendant  and  himself,  of  such  character  as  to  give 
the  defendant  the  right  to  recover  possession  as  owner.  In 
other  words,  the  garnishee's  possession  must  really  be  that  of 

1  Jones    V.    Crews,    64    Ala.    308;  ^  Buddig  v.  Simpson,  33  La.  Ann. 

Andrews  v.  Ludlow,  5  Pick.  28;  Bur-  375. 

rell  V.  Letson,  1  Strobliart,  (S.  C)  CJ9;  ^  Morse  v.  Holt,  23  Me.  180;  Lane 

E&tabrook  v.  Earle,  97  Mass.  302.  v.  Nowell,  15  Me.  8G. 


PROPERTY    IN    THE    GARNISHEE'S    HANDS.  195 

fclie  defendant-owner,  since  he  must  hold  for  the  owner.  If  the 
relation  between  the  two  is  such  that  the  owner  cannot  retrain 
his  own,  it  follows  that  the  plaintiff  in  an  attachment  suit 
against  him  cannot  reacli  the  third  person  who  is  in  possession, 
since  such  attachincr  creditor  cannot  have  o-reater  rights  and 
privileges,  towards  the  property  so  held,  than  the  debtor  him- 
self, unless  the  latter  has  been  estopped  bj  his  own  fraudulent 
transfer  from  asserting  his  right,  i 

The  privity  between  the  debtor  and  his  debtor,  or  between 
the  defendant-owner  and  the  third  person  in  possession,  necessa- 
ry to  the  legal  existence  of  garnishment,  relates  both  to  interest 
and  contract.  The  defendant  may  be  entitled  to  regain  posses- 
sion of  property  or  money  from  his  agent  or  from  any  person 
holding  it,  yet  not  have  any  proprietorship  vested  in  himself. 
He  may  have  a  right  of  action  for  its  recovery,  yet  the  recovery 
may  be  for  the  use  of  another  person.  He  maj^  have  what  is 
technically  called  "the  legal  title,"  yet  he  may  be  only  the 
trustee  of  some  real  owner.  An  executor,  administrator,  guar- 
dian, tutor,  factor,  common  carrier,  etc.,  may  legally  have  the 
right  to  regain  possession  of  money  or  goods  from  the  hands 
of  a  third  person,  yet,  as  they  are  not  the  owners  of  the  property 
or  money  belonging  to  them  for  administrative  purposes  only, 
it  cannot  be  subjected  to  the  process  of  garnishment  in  any 
attachment  suit  against  any  one  of  them  for  his  own  indebted- 
ness. A  factor  receives  a  consignment  of  cotton  from  a  planter 
for  sale;  he  entrusts  it  to  an  agent  for  some  purpose;  lie  lias 
the  right  to  re-claim  possession:  why  may  not  the  cotton  be 
subjected  to  garnishment,  and  the  sub-agent  be  made  a  garni- 
shee, in  an  attachment  suit  brought  by  a  creditor  of  the  factor? 
Evidently  because  the  factor  does  not  own  the  cotton,  and  it 
cannot  be  made  to  pay  his  debt.  Here  is  a  case  where  privity 
of  interest  between  the  defendant  and  the  garnishee  is  wanting- 
Equally  plain  illustrations  might  be  drawn   from   the  case  of 

^National    Bank   of    Missouri    v.  (La.)  667;  Burnside  v.  McKinley,  13 

Stanley,  9  Mo.  App.  146;  Skowhegan  La.  Ann.  505;  Lundie  v.  Bradford,  26 

Bank   v.  Farrer,  46  Me.  293;  Bait.  &  Ala.  512;  Cairo  &c.  R.  R.  v.  Killen- 

O.  Ry.  Co.  ■».  Wheeler,   18  Md.   372;  berg,  82   111.295;  Fitzgerald  v.  Hol- 

Araior  v.  Cockburn,  4  Martin,  N.  S.  lingswortb,  14  Neb.  188. 


196  GARNISHING. 

administrators  and  others  above  incntioncd,  when  tliird  persons 
are  sought  to  he  made  garnishees  because  of  temporary  posses- 
sion of  money  or  property  which  may  be  rechiimed  by  such 
trustees  but  not  in  the  capacity  of  owners.  The  case  of  auc- 
tioneers who  sell  for  shcritls  or  other  executive  officers,  and 
receive  the  proceeds  of  the  sale  to  be  lianded  over  to  their 
principals,  may  serve  to  illustrate  want  of  privity,  should  they 
be  served  as  garnishees;  for  they  are  in  no  sense  the  agents  of 
those  whose  property  is  sold;  have  no  relation  with  such  former 
owners,  and  are  therefore  not  chargeable  as  having  in  possession 
money  and  goods  of  such  prior  owners. ^ 

There  may  be  privity  of  interest  without  the  property  being 
liable  to  garnishment.  Property  may  be  held  by  a  third  person 
in  trust  for  the  real  owner,  under  such  terms  of  contract,  or 
under  such  operation  of  law,  that  a  creditor  of  the  owner  can- 
not attach  it  in  the  hands  of  the  trustee. 

One  who  has  promised  to  deliver  property  in  payment,  (for 
instance,  a  certain  number  of  bales  of  cotton,)  cannot  be  made 
garnishee  in  a  suit  against  the  person  to  whom  the  goods  are  to 
be  delivered;  that  is,  the  cotton  could  not  be  attached  in  the 
hands  of  such  third  person  as  the  property  of  the  defendant.  2 
One  who  has  returned  stocls:-certificates  for  re-transfer  to  their 
owner,  on  the    books  of  the  company,  cannot  be  garnished  as 

1  Peiiuiman    v.    Ruggles,   6   Muss.  Ins.  Co.  14  Ct.  501;  Elmer  ».  Welch, 

166;    Casey  v.  Davis,   100   Id.   124;  47    Id.  56;    Towns  ».  Griffith,  17  N. 

Wells  «.  Banister,  4  Id.  514;  Kichard-  H.  165;  Bean  v.   Bean,   33   Id.   279; 

sont\  AVhiting,18  Pick.530;  Chapin  Pickering  v.   Wendell,   20   Id.   222; 

V.  Ct.  R.  R.  Co.  16  Gray,  69 ;  Barnard  v.  Walker  v.  Detroit,  Grand  Haven,  &c., 

Graves,  16  Pick.  41;  Brigden  v.  Gill,  R  R.  Co.  49  Mich.  446;  Eichelberger 

16  Mass.  522;  White  v.  Jenkins,  Id.  v.   Murdock,  10   Md.  373;  Mattingly 

62;  Burnham  v.  Beal,  14  Allen,  217;  v.  Grimes,  48  Id.  102;  Jones  ».  Crews, 

Field  V.  Crawford,  6  Gray,  116;  Fal-  64  Ala.  368;  Huntley  v.  Stone,  4  Wis. 

som  V.  Haskell,   11    Cush.   470;  Mc-  91;  Simpson  v.  Harry,  1  Dev.  &  Bat. 

Ilvaine    ■».    Lancaster,    42    Mo.   96;  (N.  C.)  202 ;  Center  ^.  McQuesten,  24 

Neuer  ».  O'Fallon,  18  Id.  277;  Briggs  Kan.  480;    Miller  v.   Richardson,  1 

■0.  Block,  Id.  281 ;  Haust  v.  Burgess,  Mo.  310;  Swan  v.    Summers,  19  W. 

4  Hughes,  560;  Kelly  v.  Babcock,  49  Va.  115;  Halpin  v.  Barringer,  26  La. 

N.  Y.318;  Kelly  v.  Roberts,  40   Id.  Ann.  170:  Hartman  «.  Olvera,  54  Cal. 

432;  Slinson  v.  Caswell,  71  Me.  510;  61;  MeadoAVcroft  v.   Agnew,  89    111. 

Titcomb  v.  Seaver,  4  Me.  542;  Sweet  469. 
V.  Read,  12  R.  I.  121 ;    Jones  v.  Etna  2  Jones  v.  Crews,  64  Ala.  368. 


CKEDITS    IN    THE    GARNISHEE'S    HANDS,  197 

the  possessor  of  the  stock,  though  simimoned  before  the  trans- 
action has  been  signed  by  him  and  entered  on  the  books.  ^ 

Land  owned  by  the  attaclunent  debtor,  but  in  the  possession 
of  a  tliird  person,  is  not  subject  to  garnishment,  as  a  general 
rule;  the  ordinary  method  is  to  attach  it  constructively  by  giv- 
ing notice  of  seizure  to  the  te'nant  in  possession,  and  returning 
it  as  attached.  It  is  not  subject  to  the  process  of  garnishment 
unless  expressly  made  so  by  statute.  2 

Sec.  3.    Credits  Attached  in  the  Garnishee's  Hands. 

Garnishment  will  not  be  maintainable  on  the  ground  that 
the  garnishee  is  indebted  to  the  defendant,  unless  the  debt  is 
payable  in  money  and  the  defendant  has  right  of  action,  present 
or  maturing,  to  recover  the  money.  It  must  be  certain — not 
depending  upon  contingency- — -not  for  unliquidated  damages.^ 
There  may  be  doubt  as  to  minor  questions  affecting  the  relation 
between  the  garnishee  and  the  defendant,  but  the  indebtedness 
of  the  former  to  the  latter  must  be  certain  to  enable  the  creditor 
of  the  latter  to  reach  it  by  garnishment.  Tliere  must  be  no 
condition  precedent,  no  impediment  of  any  sort  between "tKe 
garnishee's  liability  and  the  defendant's  right  to  be  paid,  such 
as  the  attaching  creditor  himself  cannot  remove.  Kobody 
must  be  injured:  the  situation  must  be  such  that  the  garnishee 
can  get  full  acquittance  of  his  obligation  by  paying  into  court 
under  the  garnishment;  that  the  defendant  can  be  virtually  paid 
by  having  his  own  debt  paid;  and  that  the  attaching  creditor 
can  have  his  demand  satisfied  without  injury  to  any  person  or 
to  the  public  at  large.* 

A  debt  not  due  is  not  uncertain  and  contingent  by  reason  of 
its  immaturity.     The  garnishee  cannot  be  made  to  pay  it  before 

J  Cooke  «.  Hallett,  119  Mass.   148.  Plummer  v.  RuncUett,   43  Me.  oCS; 

2  How  «.  Field,  5  Mass.  390;  Dick-  Baxter     v.     Cuirier,      18    Vt.     015; 

inson  ».  Strong,  4  Pick.   57;  Repley  Wriglit  «.   Boswortli,  7   K    H.  590; 

©.Severance,   G  Pick.   474;    Gore  v.  Risley  v.  Welles,  5  Ct.  431;  Seymour 

Clisby,  y  Pick.  555 ;  Bissell  v.  Strong,  v.  Kramer,  5  Iowa,  285.    See  Dressor 

9  Pick.  5(j2;  Chapman  v.  Williams,  «).  McCord,  96  111.389. 

13  Gray,  416 ;  Moor  v.  Towle,  38  Me.  ^  Qy^e  v.  Varrell,  58  N.  H.  78. 

133 ;  Stedman  «.  Vickery,  43  Me.  133;  *  Jones  v.  Crews,  64  Alu.  368. 


198  GAKNISHING. 

maturity  but  it  may  be  subjected  to  garnisbment  aaIigu  tliore  is 
statutory  autbority  therefor.  Tho  inde!)tedness  however  must 
exist;  the  establislnnent  of  liabih'ty  arising  after  garnishment 
is  not  sutticient.^ 

To  liold  tlie  garnishee  it  must  appear  that  lie  was  indebted  to 
tlie  principal  defendant  when  the  proceeding  against  him  was 
instituted.  2  He  is  not  indebted  during  the  pendency  of  a  suit 
agiinst  him  for  libel,  instituted  by  an  attachment  defendant,  and 
is  not  chargeable  as  garnishee  by  the  attachment  plaintiff,  till 
judgment  for  libel  has  been  rendered. ^ 

If  the  maker  of  a  negotiable  promissory  note  is  summoned 
as  the  garnishee  of  the  payee  or  endorser,  the  attaching  plain- 
tiff is  not  entitled  to  judgment,  (it  has  been  held,)  if  the  note 
was  transferred  either  before  or  after  the  service  of  the  attach- 
ment, provided  the  transferee  acquired  without  notice  of  the 
attachment  and  gave  value  for  the  note.^ 

Garnishees  having  pleaded  ')wn-assum2:)s'd  for  the  defendants 
and  nulla  hona  for  themselves,  the  defendants  appeared  and 
confessed  judgment.  The  garnishees  then  pleaded  tliat  a 
receiver  had  been  appointed  for  the  defendants,  and  that 
the  indebtedness  of  the  garnishees  w^as  therefore  to  the 
receiver;  but  the  plaintiff  successfully  demurred. ^  The  rec- 
-ognition,  by  a  garnishee,  of  the  validity  of  an  assignment, 
proves  the  relation  of  debtor  and  creditor  between  him  and  the 
assignor.  6 

1  Hitchcock  v.  Miller,  48  Mich.  dismiss  the  proceedings  on  motion 
603;  Hopsm  i).  Dinan,  Id.  fil2;  Kim-  made  by  the  garnishee,  before  judg- 
ball  v.   Macomber,  50  Mich.  oG2.  ment    is    entert^d    in    the  principal 

2  Hopson -y.  Dinan,  48  Mich.  G13;  case,  especially  if  the  affidavit  is  not 
Hitchcock  «.  Miller,  Id.  603;  Kraft  amended  after  notice  to  dismiss,  and 
•».  Raths,  45  Mich.  20;  Bishop  «.  the  garnishee's  conduct  has  not 
Young,  17  Wis.  46;  Conway  v.  Ionia  caused  prejudice." 

Circuit  Judge,  46  Mich.   28.     In  the  ^  Detroit   Post  &   Tribune   Co.    v. 

last  case,  held  that   "where  proceed-  Reilly,  46  Mich.  459. 

ings  in  garnishment  are  based  upon  *  Cruett  v.   Jenkins,    53  Md.   217. 

an  affidavit   that   is  jurisdictionally  See  Robertson  ».  Baker,  10  B.  J.  Lee, 

defective,  but  the   garnishee  appears  300. 

and   discloses    assigned     claims  in  '"  Bartlett  v.  Wilbur,  53  Md.  485. 

■which  he  has  no  personal  interest,  it  ^  Id. 

is  within   the  court's  discretion   to 


CKEDITS    IN    THE    GAKNISHKE's    HANDS.  199 

One  who  has  been  legally  authorized  to  collect  the  clues  of  a 
partnership  firm  and  distribute  them  pro  rata  amojig  their 
creditors  xw  payment  of  debts  due  by  the  iirm,  cannot  be  made 
to  violate  his  trust,  or  be  defeated  in  the  performance  of  it,  by 
beiniy  made  garnishee  \\\  an  attachment  suit  afterwards  brought 
by  one  of  the  creditors.*  If  a  garnished  debtor  of  the  iirm, 
ignorant  of  the  assignment,  acknowledges  indebtedness,  he 
should  be  allowed  to  correct  his  answer.  Garnishment,  under 
such  circumstances,  cannot  defeat  the  assignment. ^ 

Funds  held  in  trust  are  subject  to  the  process  if  the  relation 
of  the  defendant  to  them  is  such  that  he  may  recover  possession 
of  them  as  his  own,  at  will,^  but  not  otherwise,  though  the 
holder  may  have  deposited  them  in  bank  in  his  own  name.  If  a 
sheriff  should  deposit  in  bank  trust  funds,  or  money  collected 
in  his  official  capacity  for  different  judgment  creditors,  the  act 
would  not  be  a  conversion  of  the  fnnds  so  as_  to  make  them 
garnishable  for  Jiis  owii  debt,  thongh  the  deposit  be  in  his  own 
Tinme.*  He  may  defend  and  show  tliis,  thonidi  the  bank,  as 
garnishee,  Hckno\v!e(l:z;es  the  de])()sit  to  be  heUl  in  the  officer's 
individual  name.^  The  onus  is  on  the  garnishee,  however,  to 
ehow  that  wdiat  he  acknowledges  to  hold  is  in  trust,  where  such 
answer  may  be  traversed;  and  a  deed  of  assignment  made  in 
another  State,  and  not  shown  to  be  valid,  has  been  held  insuffi- 
ciejit  for  the  pui'pose,''   though  this  seems  against  the  general 

1  Haust  «.  Burgess,  4  Hughes,  5G0.  7  Id.   347-,  Tucker  «.    Clisby,  12  Id. 

2  Sweet  «.  Read,  12  R.  I.  121.  22;  Williams    «.    Reed,   5   Id.  480; 

3  McLaughlin  «.  Svvann,  18  How.  Watkins  «.  Otis,  2  Id.  88;  Raynes  «. 
217;  Silverwood  ®.  Bellar,  8  Whar.  Lowell,  etc.  Society,  4  Cush.  343; 
420;  Bank  of  Northern  Liberties®.  Sparhawk  «.  Cloon,  125  Mass.  263; 
Jones,  42  Pa.  St.  53G;  Jackson  v.  Daniels  «.  Eldredge,  Id.  356;  Wells «. 
Bank  of  U.  S.  10  Id.  61 ;  Park  «.  Hawes,  122  IMass.  97 ;  Hearn  «. 
MaUhews,  36  Pa.  St.  28 ;  Huntington  Crutcher,  4  Yerg.  461 ;  Thompson  -». 
«.  Risden,  43  Iowa,  517;  Cook  v.  Stewart,  3  Ct.  171 ;  Emery  ■«.  Davis, 
Dillon,  9  Iowa,  407;  Haskell  v.  Has-  17  Me.  253;  Edson  v.  Trask,  32  Vt. 
kell,  8  Met.   (Mass.)  545;  Stevens  «.  18. 

Bell,  6  Mass.  339;  Davis  •«.  Marstou,  *  Meadowcroft  v.  Agnew,  89    111. 

5  Id.  199 ;  Pierson  ®.  Weller,  3  Mass.  469. 

564;     New    England    Ins.     Co.     c.  ^  Id. 

Chandler,   16   Id.   275;    Richards  v.  «  Frank  «.  Frank,  6Mo.  App.  588; 

Allen,  8  Pick.  405;  Webb  «.  Peele,  Horton  ».  Grant,  56  Miss.  404. 


200  GAKNISniNG. 

doctrine  that  tlie  burden  of  disprovinii^  the  garnishee's  answer, 
when  traversable,  rests  on  the  garnishing  party. ^ 

A  deposit  to  the  credit  of  a  second  person  to  wliom  the  bank 
acknowledges  indebtedness  by  a-certitieate,  maybe  subjected  to 
garnishment  in  the  hands  of  tlie  bank  as  his  dubtor,  in  a  suit 
against  him.^ 

A  depositor  cannot  escape  the  danger  of  having  tlie  deposit 
attached  in  the  hands  of  the  bank  as  his,  if  he  makes  the 
deposit  fraudulently  in  the  name  of  another.  Though  he  be  a 
public  officer,  and  deposit  a  fund  which  he  liolds  in  trust,  it 
W'Ould  not  lie  in  his  mouth  afterwards  to  say  that  the  fund  M'as 
not  his  private  money  liable  to  attack  by  his  creditors,  if  the 
deposit  had  been  made  in  contravention  of  law.^  Tlie  public 
fund  thus  deposited  C(Mild  be  claimed  in  tlie  suit  of  attnclnnent, 
by  the  state,  city,  county  or  wluitsover  corporation  miu'lit  be  the 
owner;  but  he  could  not  comphiin  if  the  fund  shouhl  be  taken 
by  his  creditors  and  he  be  afterwards  made  to  account  as  a  pub- 
lic officer  for  all  that  had  come  into  his  hands. 

It  is  only  the  defendant's  property  and  credits  which  can  oe 
reached  by  the  process  of  garnishment — not  the  property  and 
credits  which  he  has  in  trust  for  others.  Such  property  may  be  in 
the  hands  of  agents  for  various  purposes  connected  with  the 
trust,  but  those  agents  cannot  be  made  garnishees  in  a  suit 
against  the  defendant  on  his  own  account.'* 

Money  deposited  with  the  clerk  of  a  court  as  security  for  an 
appeal  remains  the  money  of  the  depositor  subject  to  the  con- 
tingency of  answering  the  claim  of  the  appellee  in  case  the 
appellant  should  be  adjudged  against;  and  it  is  therefore  garn- 
ishablt3.5  But  the  creditor  cannot  disturb  the  deposit  till  all 
liability  of  its  being  required  for  the  purpose  for  which  it  is 
placed  with  the  clerk  shall  have  passed;  till  the  money  becomes 

iRippen».  Schoen,  93  111.  229.  2C7;  Mcllvaine  «.  Lancaster,  43  Id. 

2  Exchange  Bank  ■».  Gulick,  24  96;  White  v.  White,  30  Vt.  338; 
Kan.  359;  Nichols  v.  Goodheart,  5  Hewitt  ^•.  Wheeler,  23  Ct.  557;  Key- 
Ill.  App.  574.  ser  v.  Mitchell,  67  Pa.  St.  473 ;    Hall 

3  South  Bend   Bank  v.   Gaudy,  11  «.  Williams,  130  Mass.  344. 

Neb.  431.  ^  Dunlop  v.  Patterson  Fire  Ins.  Co. 

*  Lackland    y.    Garesche,    5G  Mo.      74  N.  Y.  145. 


CEEDiTS  IN  THE  gaknishee's  hands.  201 

snsceptible  of  application  to  tlie  debt  due  tlie  creditor  without 
injury  to  any  other  person. 

Tlie  proceeds  of  land  sold  by  a  trustee  under  a  decree  of 
conrt,  and  distributed  so  far  as  tlie  ratification  of  the  auditor's 
account,  and  paid  into  conrt  nnder  judicial  order,  and  de])osited 
in  bank  to  the  credit  of  the  cause,  cannot  be  subjected  to 
garnishment  as  still  in  the  hands  of  the  trustee;  nor  can  any 
part  of  it.i 

If  possession  is  merely  constructive,  the  possessor  cannot  be 
garnished.  2  Possession  by  the  garnishee  is  not  deemed  con- 
structive in  such  a  sense  as  to  make  him  nnchargeable,  M'hen 
he  holds  by  a  clerk  or  other  agent. ^  What  his  agent  holds,  he 
holds;  and  he  is  amenable  to  the  process,  in  a  suit  against  the 
defendant-owner.  This  is  apparent  in  consideration  of  the  tact 
that  those  who  hold  nnder  him  and  for  him  are  not  earnishable 
because  of  sucli  possession  in  a  suit  against  their  immediate 
principal,  for  the  manifest  reason  that  the  funds  are  not  liis.* 

When  the  owner  of  property  or  credits  in  a  third  person's 
hands  cannot  sue  without  the  performance  of  some  condition, 
such  third  person  cannot  be  made  a  garnishee  at  the  suit  of  a 
creditor  of  the  owner  against  the  owner.  ^  The  garnishee  may 
answer  that  he  has  nothing  deliverable  to  the  defendant,  or  over 
which  the  latter  has  control.  But  if  only  a  notice  or  some 
slight  preliminary  action  is  requisite  on  the  part  of  the  owner 
to  gain  possession  of  goods  or  to  render  a  credit  actionable,  his 
creditor  may  summon  the  third  person  holding  or  owing  and 
hold  him  as  garnishee.  ^  The  dilference  is  between  the  existence 
of  a  condition  precedent  to  owning,  and  a  condition  precedent 
to  right  of  possession.     It  is   wdien   a  condition   of  tlie  latter 

iMaltinglyy.  Grimes,  48  Md.  102.  King,  57  Pa.    St.  202;  McCormac  «. 

2  Nickerson    v.   Chase,  122    Mass.  Hancock,  2  Id.   310;  Jones  v.   Bank 
296;  Andrews  ».  Ludlow,  5  Pick.  28.  of  Northern  Liberties,    44  Id.  253; 

3  Nichols  V.  Goodheart,  5  111.  App.  Wright  v.  Foord,  5  N.  H.  178. 

574;  Ward  v.  Lamson,  6  Pick.  358;  ^  Curtis  v.  Alvord,  45  Ct.  569;  Wil- 

McDonald    v.    Gillet,    69   Me.   271;  liams  ?j.  Young,  46   Iowa,   140;  Ma- 

Childs  V.  Digby,  24  Pa.  St.  23.  duel  v.  Mousseaux,   29   La.  Ann.  228. 

*  Muith  V.   Schardin,  4  Mo.  App.  ^  Ware  v.  Gowen,  65  ]\Ie.  534;  Zim- 

403;    Farmers'    &c.     Nat.    Bank  v.  nier«.  Davis,  35  Mich.  39. 


202 


GARNISHING. 


sort  is  the  only  obstacle  that  the  creditor  may  disregard  it  and 
hold  the  garnishee. 

Contingent  liability  affords  no  ground  for  garnishment. ^ 
Where  indebtedness  not  only  depends  npon  conditions  but  is  to 
be  novated  when  it  shall  become  due  by  drafts  payable  to  the 
garnishee  and  endorsed  by  him  to  the  defendant,  it  cannot  be 
subjected  to  garnisliment.^ 

The  general  rule  is  that  the  garnishee  is  not  chargeable  unless 
the  defendant  could  recover  of  him  what  the  plaintiff  seeks  to 
secure  by  garnishment.  ^  Nor  is  he  chargeable  on  contingent 
liability  to  the  defendant  in  damages,  though  the  latter  may 
have  a  good  cause  of  action  and  the  damages  may  be  recovera- 
ble. * 

Where  the  damages  arise  ex  contractu  and  are  certain  and 


'  Hearne  v.  Keath,  63  Mo.  84. 

2  Larrabee  ».  Walker,  71   Me.  441. 

'  Victor  ».  Hartford  Insurance  Co. 
33  Iowa,  210;  Webster  v.  Steele,  75 
111.  544;  Pierce  «.  Carlton,  12  Id.  358; 
Davis  V.  Pawlette,  3  Wis.  300;  Lewis 
t,.  Smith,  2  Cr.  C.  C.  571 ;  Geer  ». 
Chapel,  11  Gray,  18;  Fellows  «.  Dun- 
can, 13  Met.  Mass.  332;  Maine  &c. 
Ins.  Co.  «.  Weeks,  7  Mass.  438; 
White  c.  Jenkins,  16  Id.  62;  Brigden 
V.  Gill,  Id.  522 ;  Caldwell  'o.  Coates, 
78  Pa.  St.  312;  Ruudlet  «.  Jordan,  3 
Me.  47;  Hoyt  «.  Swift,  13  Vt.  129; 
Morey».  Sheltus,  47  Vt.  342;  Hut- 
chins  «.  Hawley,  9  Id.  295;  Kettle  v. 
Harvey,  21  Id.  301 ;  Cobb  ®.  Bishop, 
27  Id.  024 ;  Haven  ®.  Wentworth,  2 
N.  H.  93;  Adams  v.  Barrett,  Id.  374; 
Piper -«.  Piper,  Id.  439;  Greenleafw. 
Perrin,  8  N.  H.  273 ;  Paul  ®.  Paul,  10 
Id.  117;  Paul  ®.  Reed,  52  Id.  130; 
Patton  «.  Smith,  7  Iredell,  438;  Cook 
■y.  Walthall,  20  Ala.  334;  Harrell  «. 
Whitman,  19  Id.  135;  Mims  v.  Par- 
ker, 1  Ala.  421 ;  Foster  v.  Walker,  2 
Ala.  177;  Hall  ».  Magee,  27  Ala.  414; 
Lundie  v.  Bradford,  26  Id.  512;  Nes- 
bitt  V.  Ware,   30   Id.   68;  Powell  «. 


Sammons,  31  Id.  552;  Lewis  v.  Du- 
bose,  29Id.  219;  McGehee  «.  Walke, 
15  Id.  183;  Walke  v.  McGehee,  11  Id. 
273;  Jones  v.  Crews,  64  Ala.  308; 
Pressnall  v.  Mabray,  3  Porter,  105; 
Smith  «.  Chapman,  6  Id.  365;  Allen 
V.  Morgan,  1  Stewart,  9;  Williams  «. 
Gage,  49  Miss.  777 ;  Turner  v.  Arm- 
strong, 9  Yerg.-  412;  Wetherill  v. 
Flanagan,  2  Miles,  243;  Bridges  -y. 
North,  22  Ga.  52;  Estill  ®.  Goodloe, 
6  La.  Ann.  122. 

*  Hemmenway  v.  Pratt,  23  Vt.  332 ; 
Barker  «.  Esty,  19  Id.  131 ;  Fish  v. 
Field,  Id.  141;  Lomerson  v.  Huff- 
man, 1  Dutch.  625 ;  Foster  v.  Dudley, 
10  Fos.  463;  Boardman  vi.  Roe,  18 
Mass.  104;  Thayer  «.  Southwick,  8 
Gray,  229;  Rand  ®.  White  Mountain 
R.  R.  40  N.  H.  79 ;  McKean  v.  Tur- 
ner, 45  Id.  203 ;  Despatch  Line  v. 
Bellamy  Manf.  Co.  12  Id.  205;  Get- 
chell  ».  Chase,  37  Id.  106 ;  Leefe  v. 
Walker,  18  La.  1;  Peet «.  McDaniel, 
27  La.  Ann.  455 ;  Ransom  v.  Hays,  39 
Mo.  445 ;  Graham  v.  Moore,  7  B.  Mon. 
53;  Hugg  «.  Booth,  2  Iredell,  282; 
Deaver  v.  Keith,  5  Id.  374. 


CEEDITS    IN    THE    GARNISHEE  S    HANDS. 


203 


due,  tliey  may  be  readied.  ^  Contingent  liability  on  contract 
affords  no  ground  for  garnishment. ^  A  certain  liability  is  sufH- 
cient  though  the  debt  be  payable  in  future.  ^  But  this  is  not 
invariable  practice.  * 

Wages  and  salaries,  when  exempt  from  direct  execution  by 
garnishment  after  judgment,  are  also  exempt  from  attachment 
garnishment.  5 

A  debtor  of  defendant,  who  has  contracted  to  pay  to  another 
person,  is    not  liable   to    garnishment  in  the    suit  of  another 


'  Girard  Fire  Ins.  Co.  v.  Field,  45 
Pa.  St.  129;  Boyle  «.  Franklin  Fire 
Ins.  Co.  7  Watts  &  Serg.  76;  Frank- 
lin Fire  Ins.  Co.  v.  West,  8  Id.  350; 
Knox  V.  Protection  Ins.  Co.  9  Ct.  430; 
Northwestern  Ins.  Co.  v.  Atkins,  3 
Bush,  328. 

2  Williams  v.  Railroad  Co.  3G  Me. 
^01;  Ives  «.  Vanscoyoc,  81  111.  120; 
Bishop -y.  Young,  IT  Wis.  46;  Bates 
V.  New  Orleans  &c.  R.  R.  Co.  4  Abb. 
Pr.  72-;  Clement  v.  Clement,  19  N. 
H.  460;  Say  ward  v.  Drew,  6  Me.  263; 
Roberts  v.  Drinkard,  3  Met.  (Ky.) 
309;  Maduel  v.  Mousseaux,  29  La. 
Ann.  228;  Russell  v.  Clingman,  33 
Miss.  535;  Williams  v.  Marston,  3 
Pick.  65;  Guild  v.  Holbrook,  11  Pick. 
101;  Faulkner  v.  Waters,  Id.  473; 
Taber  v.  Nye,  12  Id.  105;  Rick  «. 
W;iters,  22  Id.  563;  Weutworlh  v. 
Whittemore,  1  Mass.  471;  Davis  v. 
Ham,  3  Id.  33;  Frothingham  v.  Ha- 
ley, Id.  6S;  Willard  v.  Sheafe,  4  Id. 
235;  Wood  V.  Partridge,  11  Id.  488; 
Grant  v.  Shaw,  16  Id.  341 ;  Hancock 
V.  Colyer,  99  Id.  187;  .Vood  v.  Bux- 
ton, 108  Id.  103;  Potter  v.  Cain,  117 
Id.  238;  Meacham  «.  Corbitt,  2  Met. 
(Mass.)  252 ;  Coburn  v.  Hartford,  38 
Ct.  290;  Strauss  i).  Railroad  Co.  7  W. 
Va.  368;  Martz  v.  Detroit  Ins.  Co. 
28  Mich.  201;  Thorp  v.  Elliott,  42 
Mich.  201;  Katz  «.  Sorsby,  34  La. 
Ann.  588. 

2  King  v.  Vance,  46  Ind.  246 ;    Cot- 


trell  ».Varnum,5  Ala.  229 ;  Branch  B'k 
V.  Poe,  1  Id.  396;  Dunuegan  v.  Byers, 
17  Ark.  492;  Fay  v.  Smith,  25  Vt. 
610;  Say  ward  «.  Drew,  6  Me.  263; 
Willard  v.  Sheafe,  4  Mass.  235; 
SteuaKt  «.  West,  1  Harr.  &  J.  536; 
Fulweiler  v.  Hughes,  17  Pa.  St. 440; 
Walker  v.  Gibbs,  2  Dall.  211;  Peace 
V.  Joues,  3  Murphy,  256. 

^McMinn  v.  Hall,  2  Tenn.  328; 
Childress  v.  Dickens,  8  Yerg.  113; 
Thorp  V.  Preston,  42  Mich.  511,  with 
reference  to  future  rents:  Ordwayt). 
Remington,  12  R.  I.  319  as  to  the 
time  when  rents  became  garnish- 
able;  Jones  V.  Crews,  64  Ala.  368: 
future  payment  in  cotton. 

^  Wages  not  yet  due,  and  ten  dol- 
lars of  those  due  in  each  case,  are 
exempt  from  garnishment  in  Mary- 
land, Md.  Code,  Art.  10,  §  36;  House 
V.  Baltimore  &  Ohio  R.  R.  Co.  48 
Md.  130.  Salai'ies  of  public  officers 
cannot  be  subjected  to  garnishment 
in  Alabama,  though  §  2948  of  its  Re- 
vised Code,  provides  for  the  attach- 
ment of  mouey  in  the  hands  of  a 
sheriff  or  other  officer.  Pruitt  v. 
Armstrong,  56  Ala.  306.  Funds 
which  are  exempt  from  garnishment 
may  be  ordered  to  be  paid  to  the 
debtor,  on  motion,  after  notice,  and 
the  garnishee  may  be  discharged. 
Williamson  «.  Harris,  57  Ala.  40. 
AVages  liable  in  Ga.  in  a  suit  for  pro- 
visions     furnished,    notwithstanding 


204 


GARNISHING. 


creditor  against  tlie  defendant,  when  it  appears  tliat  no  demand 
has  been  made  by  the  hitter  subsequent  to  such  contract. ^ 
The  purchaser  of  mortgnged  property  does  not  become  indebted 
to  the  mortgagee  though  lie  may  have  promised  the  ven(hn'  that 
he  would  pay  the  mortgage  debt,  and  though  the  property 
remains  bound;  and  hence  an  attachment  creditor  in  a  suit 
against  the  mortgagee  cannot  make  the  purchaser  a  garnishee. ^ 

A  mortgagee,  in  possession  of  mortgaged  chattels,  is  held 
to  be  not  garnishable  for  what  they  may  be  worth  beyond  the 
amount  of  the  mortgage. ^  A  judgment-debtor  may  be 
garnished,  after  his  appeal,  if  no  supersedeas  bond  lias  been 
filed;'*  but  money  due  on  a  decree  of  a  court  of  equity  has  been 
held  not  liable  to  attachment;  ^ 

What  is  due  a  partnership  cannot  be  subjected  to  garnishment 
as  a  credit  due  one  of  the  iirm.s      In  an  attachment  suit  against 


pending  of  prior  garnishment.  Dun- 
lao  V.  Hooper,  67  Ga.  721.  In  Wis- 
consin, the  statute  exempting  sixty 
days'  earnings  of  a  debtor  who  has  a 
family  to  support,  is  inapplicable  to 
non-resident  debtors.  Commercial 
Bank  v.  Chicago,  M.  &  St.  P.  R.  R. 
Co.  45  Wis.  172.  In  New  York,  sixty 
days'  wages  are  exempt.  McCul- 
lough  V.  Carragan,  24  Hun.  157.  In 
Maryland,  all  beyond  a  hundred  dol- 
lars of  wages  due  may  be  attached. 
Hagerstowu  Bank  v.  Weckler,  52 
Md.  30.  See  Iowa  Code,  §  3074, 
Shelly  V.  Smith,  59  Iowa,  453.  In 
Moore  v.  Chicago,  &c.  R.  R.  Co.  43 
Iowa,  385,  a  railroad  company  was 
held  not  bound  to  plead,  when  sum- 
moned as  garnishee  in  Mo.  that  a  R. 
R.  employee's  wages  are  exempt  in 
Iowa.  Wages  of  guests  upon  which 
the  hotel  keeper  has  a  lien  by  sta- 
tute cannot  be  subjected  to  garnish- 
ment. Rischert  v.  Kunz,  9  Mo.  App. 
283.  Wages  to  the  amount  of  twenty- 
five  dollars  are  exempt  in  Illinois. 
Chicago,  &c.  R.  R.  Co.  v.  Raglaud,  84 
111.375;  Bliss  t).    Smith,  78   111.359; 


whether  the  debtor  is  a  resident  or 
not,  if  he  is  the  head  of  a  family. 
Mineral  Point  R.  R.  Co.  v.  Barron, 
83  111.  365.  In  Ohio,  three  months' 
wages  are  exempt,  if  necessary  for 
family  support.  Snook  v.  Suetzer, 
25  Ohio  St.  516.  In  Massachusetts, 
the  wages  of  a  seaman  on  an  Atlan- 
tic  coasting  voyage  are  not  exempt. 
White  V.  Dunn,  134  Mass.  271.  But 
owners  of  a  coasting  vessel,  sum- 
moned as  trustees  of  seamen,  will 
not  be  charged  if  they  have  already 
been  condemned  to  pay  the  wages 
to  another  claimant,  by  a  decree  in 
admiralty.  Eddy  v.  O'Hara,  132 
Mass.  56. 

1  Elmer  v.  Welch,  47  Ct.  56 ;  Cen- 
ter V.  McQuesten,  24  Kan.  480;  Slin- 
son  V.  Caswell,  71  Me.  510. 

2  Hartman  v.  Olvera,  54  Cal.  61. 

3  Dieter  v.  Smith,  70  111.  168. 

*  Phillips  V.  Germon,  43  Iowa,  101. 

5  Black  V.  Black,  32  N.  J.  Eq.  74. 

«  Williams  ».  Gage,  49  Miss.  777; 
Mobley  v.  Loubat,  7  How.  (Miss.) 
318;  Ford  i;.  Detroit  Dry  Dock  Co. 
50  Mich.  358;  Winston  v.   Ewing,   1 


CREDITS    IN    THE    GAENISUEe's    HANDS.  205 

him,  a  debtor  to  the  partnership  cannot  be  made  a  garni- 
shee. Such  debtor  owes  nothing  to  any  one  member  of  the 
firm. 

If  a  snit  is  brouglit  against  a  member  of  a  firm  to  whom  the 
firm  is  indebted,  what  is  due  liim  may  be  garnisheed,  provided 
the  garnished  partners  be  within  the  jurisdiction.^  A  creditor 
may  levy  upon  the  interest  of  one  partner  in  tangible  property 
belonging  to  the  partnership, 2  but  a  demand  due  in  part  only 
to  the  principal  defendant  cannot  be  made  the  subject  of  garn- 
ishment. ^ 

As  a  debt  due  a  firm  cannot  be  reached  by  the  garnishment  of 
the  debtor  in  a  suit  against  one  of  the  partners,  the  court 
cannot,  in  such  suit,  compel  the  other  partners  to  appear.*  But, 
in  a  suit  against  a  firm,  the  debtor  of  a  partner,  or  rather  the 
holder  of  money  belonging  to  a  partner,  was  held  garnishable.-'' 

It  is  held  that  a  joint  debt  cannot  be  subjected  to  garnish- 
ment if  there  is  service  on  but  one  of  the  debtors  ;6  but 
otherwise  if  the  debt  be  joint  and  several.''  If  one  of  the 
joint  and  several  obligors  be  garnished,  another  who  is  not  may 
pay  the  debt  to  the  defendant  and  thus  relieve  the  garnish- 
ment. ^ 

The  answer  of  a  garnishee  acknowledging  indebtedness  to  a 
firm  of  which  the  defendant  is^a  member,  but  denying  indebted- 
ness to  the  defendant,  would  not  bind  him.  There  would  be  no 
valid  garnishment;  the  debt  due  the  firm  would  not  be  attached, 

Ala.  129;  Kingsley  v.  Mo.  Fire   Co,  «  Hirth  v.  Pfeifle,    42    Mich.    31; 

14  Mo.  4G7 ;    Sheedy   v.  Second  Nat.  Wellover  v.  Soule,  30  Id.  481 ;  Hos- 

Bank,  62  Id.  17;  Church  v.  Knox,  2  kins«.  Johnson,  24  Ga.   625;  Wilson 

Ct.  514;  Atkins  v.  Prescott,  10  N.  H.  v.  Albright,  2  G.  Greene,  125;  Peltes 

120;  Towne   v.   Leach,   32   Vt.   747;  «.  Spalding,  21  Vt.  66;  Rix  1;.  Elliott, 

Barry  ».  Fisher,  39  How.  Pr.  521.  1  N.  H.  184;  Hudson  v.  Hunt,  5  Id. 

1  Myers  ^.  Smith,  29  Ohio  St.  120.  538;  Atkins   v.  Prescott,  10   Id.  120; 

2  Id ;  Nixon  &  Chatfield  v.  Nash  &  Ellicott  v.  Smith,  2  Cr.  C.  C.  543. 
Atkinson,  12  Ohio  St.  648.  '  Macomber  v.  Wright,  35  Me.  156; 

3  Markham  v.  Gehan,  42  Mich.  74.      Travis  v.  Tartt,  8  Ala.  574;  Speak  v. 
*  Myecs  V.  Smith,  29  Ohio  St.  120;      Kinsey,  17  Tex.  301. 

Sheedy  v.  Second  Natioral  Bank,  62  ^  Jewett  r.  Bacon,  6  Mass.  60.     See 

Mo.  17 ;  Sweet  d.  Bead,  12  R.  I.  121.  Hawley  v.  Atherton,  39  Ct.  309 ;  Sabin 

^  Pearce  v.    Shorter,  50   Ala.  318;  i).  Cooper,  15  Gray,  532. 
Stevens  v.  Perry,  113  Mass.  280. 


206  GARNISIIIXG. 

Since  only  one  member  of  it  is  defendant  in  tlie  attaclmiciit 
suitJ  But,  after  such  answer,  the  attaching  creditor  may 
amend  his  writ  by  making  tlie  other  partner  or  partners  of  the 
firm  defendants  also,  so  as  to  bring  into  court  the  fli-m  itself; 
and  then,  if  the  garnishee  or  trustee  still  holds  funds  of  theirs, 
or  owes  them  a  debt,  he  will  be  bound  by  his  answer  already 
given,  and  the  attachment  will  be  valid. ^ 

If  some  of  the  members  of  a  firm  are  non-residents,  and 
garnislnnent  is  directed  against  all  but  only  the  residents  are 
served,  it  has  been  held  that  the  firm  is  bound  as  garnisliee.  ^ 

The  obligation  of  the  maker  of  a  negotiable  note  is  to  the 
holder;  and  though  he,  as  garnishee,  may  answer  that  the 
defendant  was  the  holder  M-lien  the  garnishment  was  served,  or 
tliat  he  is  still  the  holder  at  the  time  of  answering,  it  does 
not  follow  that  the  maker  may  be  charged  as  garnishee,  for  the 
defendant  may  pass  the  note  at  any  time.*  The  maker  becomes 
liable  when  the  currency  or  negotiability  of  the  note  has  been 
destroyed  by  notice  or  otherwise  pursuant  to  peculiar  statutory 
provisions,  if  the  defendant  is  shown  to  be  the  holder. 

"When  a  note  of  a  firm  was  delivered  to  the  payee  who  put  it 
in  the  hands  of  a  member  of  the  firm  to  secure  the  latter  in 
case  of  loss  because  of  his  having  become  security  to  the  payee 
on  a  bond,  it  was  decided  that  the  firm  were  not  chaj*o-eable 
as  garnishees  in  a  suit  against  the  payee,  for  the  reason  that  the 
note  was  not  in  his  possession.''  The  general  rule  however  is 
that  the  maker  is  garuishable  if  summoned  before  payujent  if 
the  control  continues  in  the  original  payee. 

Payment  to  the  credit  of  the  payee  of  a  note  under  a  gar- 

1  Hawes  v.  Waltham,  18  Pick.  451 ;  v.  Barnum,  24  Vt.  75.  (See  Kidder  v. 
Hoyt    V.   Robinson,    10    Gray,    371 ;      Pacl<ard,  13  Mass.  80.) 

Bulfinch  V.  Wiuclienbacli,   3  Allen,  ■'Sheets    v.   Culver,    14    La.    449; 

IGl.  Kimball  v.  Plant,  Id.  511 ;  Stone  v. 

2  Sullivan  v.  Langley,  128  Mass.  Dean,5  N.  H.  502;  McMillan  «.  Ri- 
235;  West  V.  Piatt,  11(3  Mass.  308;  cliards,  9  Cal.  S65;  Gregory  v.  Hig- 
Terry  v.  Sisson,  125  Mass.  500;  gins,  10  Id.  339;  Hinsdill  w.  Safford, 
Wright  D.  Herrick,  125  Mass.  154.  11  Vt.  309;  Little  v.   Hale,   Id.  482; 

3  Parker  v.  Danforth,  IG  Mass.  299;  Hutchins  v.  Evans,  13  Vt.  541 ;  Hunt 
Warner  v.  Perkins,  8  Gush.  518;   At-  «.  Ely,  17  Fla.  775. 

kins  V.  Prescott,  10  N.  H.  120;  Peck  »  Hunt  v.  Ely,  17  Fla.  775. 


CREDITS    IN    THE    GARNISHEE'S    HANDS.  207 

nishment  jnd<:;;ment  is  no  defense  against  a  second  indorsee  wlio 
was  not  a  party  to  the  proceeding.  ^ 

The  maker  of  a  negotiable  note  owes  somehodj  but  not  neces- 
sarily the  payee  named  therein.  And  in  a  snit  against  the 
payee,  he  cannot  ordinarily  be  snbjected  to  garnishment.  How 
can  he  answer  that  he  owes  the  payee,  when  the  note  may  have 
passed  into  other  hands?  lie  nsually  does  not  know.  His 
obligation  is  to  pay  the  holder  at  maturity.  Even  if  he  does 
know  and  does  answer  that  the  note  is  still  in  the  hands  of  the 
original  payee,  while  it  is  not  yet  due,  no  judgment  can  be  ren- 
dered against  him  as  garnishee,  for  the  reason  that  the  holder 
may  pass  it  oiF  afterwaixls,  and  the  obligation  would  be  to  the 
transferee;  and  therefore,  should  judgment  be  rendered  against 
him  upon  his  answer,  he  might  be  subjected  to  the  injustice  of 
having  to  pay  twice. 

Would  payment  of  the  note,  under  such  judgment,  be  any 
protection  to  the  rfimishee,  should  the  note  be  afterwards  pre- 
sented by  the  rightful  owner?  Could  he  plead  payme^^it  in 
defense?  As  he  certainly  could  not,  such  judgment  would  place 
him  in  a  worse  position  than  that  which  he  previously  occupied, 
which  is  against  justice  and  against  the  iirst  j^rinciple  govern- 
ing the  process  of  garnishment. 

If  the  note  given  by  the  garnishee  to  the  defendant  has 
been  so  disposed  of  by  the  latter  that  it  is  certainly  not 
upon  the  market,  the  maker  may  be  charged  as  garnishee. 
But  he  cannot  be  so  charged  when  the  note  has  passed  from  the 
hands  of  the  defendant  and  is  somewhere  upon  the  market. 2 

When  the  legal  title  is  vested  in  the  indorsee,  by  endorse- 
ment after  maturity,  the  amount  due  on  the  note,  (a  notiable 
promissory  one.)  cannot  be  garnisheed  in  the  hands  of  the 
maker,  in  a  suit  against  the  original  holder.  It  is  not  to  be 
assumed  that  he  is  still  the  debtor  of  tlie  original  holder, 
■whether  he  has  notice  of  the  transfer  or  not.^ 

If  a  negotiable  note  has  been  transferred  after  the  attachment 
has   been  served   on  the  defendant,  but  before   maturity,  the 

»  Holland  v.  Smith,  11  Mo.  App.  6.  ^  Knisely   v.   Evans,    34    Ohio   St. 

•■^  Waiue  V.  Kendall,  78  111.  598.  158. 


'  208  GAUNISIIING. 

maker  cannot  1)G  held  as  garnishee  of  the  payee  or  endorser, 
when  ]ie  has  had  no  notice  of  the  attachment.  ^  The  hohler 
takes  an  overdue  note  suhject  to  equities  between  the  original 
parties  including  the  right  acquired  by  an  attaching  creditor 
by  garnishing  the  maker. ^ 

Whenever  assignment  and  notice  to  the  maker  is  necessary 
to  the  transfer  of  the  note,  the  maker  when  summoned  as 
garnishee  may  state  with  certainty  that  he  owes  the  payee,  in 
the  absence  of  notice:  therefore  garnishment  will  be  maintained. 
He  could,  in  such  case,  if  required  to  pay  by  judgment  of 
court,  defend  against  a  subsequent  demand  of  an  assignee,  and 
therefore  would  suffer  no  wrong  by  reason  of  the  garnishment. 
Where,  under  statutory  provision,  an  annegotiable  note  may  be 
assigned  without  notice  giv^en,  the  maker  cannot  rightfully  be 
subjected  to  garnishment  any  more  than  where  the  paper  is 
negotiable;  for,  the  reason  for  bis  liability  failing,  there  is  no 
liability. 

But  if  the  maker  of  a  negotiable  note  not  matured  is  garn- 
ished by  the  payee's  creditor,  and  afterwards  takes  up  the 
note  at  maturity  and  gives  the  payee  another  negotiable  note 
for  the  same  debt,  he  io  liable  under  the  garnishment.  It  is 
true  that  such  note  may  have  passed  into  unknown  hands  before 
judgment,  and  may  not  be  due;^  but  the  drawer,  under  the 
circumstances,  ought  not  to  be  heard  to  plead  such  a  defense. 
For  if  a  garnishee  surrenders  notes  of  the  debtor  after  summons, 
he  is  liable  to  the  creditor,  if  they  are  shown  to  be  good  and 
subject  to  garnishment.^  He  may  pay  an  indorsee  after  being 
summoned  as  garnishee  of  the  payee  if  his  fees  are  not  paid.  ^ 

The  maturity  of  a  note,  or  of  any  obligation,  cannot  be 
hastened  by  attachment;  the  creditor  cannot  make  the  garnishee 
pay   any  earlier  than    the  defendant   could,  had  no  suit  been 

1  Cmett  TJ.  Jenkins,  53  Md.  217.  while   remaining  in  the    hands    of 

2  Burton  v.  Wynne,  55  Ga.  615.     It      such   indorsee.      Clough  v.  Buck,  6 
was  held  in  Nebraska  that  a  negoti-      Neb.  843. 

able  note  or  bill,  transferred  fraudu-  ^  Leslie  v.  Merrill,  53  Ala.  323. 

lently  before  maturity  to  protect  the  *  Stevens  v.  Dillman,  80  111.  233. 

debt  from  the  creditors  of  the  payee,  '  Kauffman  v.  Jacobs,  49  Iowa,  432. 
may    be    subjected   to  garnishment 


ASSIGNMENT    V.'ITII    KEFEREXCE    TO    GARNISHMENT.  209 

bronglit  ngainst  the  latter.  Indebtedness  by  the  garnishee, 
existing  and  acknowledged,  does  not  imply  that  immediate  pay- 
ment may  be  demanded.  Garnishment  may  operate  the  secur- 
ing of  tlie  payment  into  conrt  \vhenduc  but  cannot  change  the 
contract  between  the  payor  and  payee  of  a  note  by  creating  an 
earlier  date  of  maturity  than  was  stipulated. 

A  credit  may  be  subjected  to  garnishment  with  all  its  subse- 
quent growth  by  way  of  interest;  an  article  of  property  may  be 
so  subjected  with  all  its  later  accretion  of  additional  value  by  a 
rise  in  the  market;  but  no  garnishment  can  take  hold  of  any- 
thing not  already  in  the  garnishee's  hands,  excepting  the 
enhancements  of  value  above  sufjo-ested. 

There  may  be  diminution  of  value  without  the  fault  of  the 
garnishee,  and  he  cannot  be  held  responsible  therefor.  "Why 
should  he  be  made  to  account  for  a  cask  of  liquor,  evaporated 
to  a  mere  liquor  cask  after  summons? 

The  liability  is  measured  by  the  indebtedness  at  the  time  of 
the  garnishment,!  when  tlie  interrogatories  do  not  not  cover  snb« 
sequent  time;  and  governed  by  the  character  of  such  indebted- 
ness.  If  payable  not  in  money  but  in  negotiable  promissory 
notes,  such  indebtedness  would  not  make  the  defendant's  debtor 
liable  to  garnishment  at  the  suit  of  the  attaching  creditor,  when 
the  times  of  the  maturity  of  such  notes  is  not  stated  by  the 
garnishee  nor  inquired  into  by  the  plaintiff. ^ 

The  liability  of  the  garnishee  cannot  be  greater  than  that  of 
the  defendant.  3 

Sec.  4.    Assignment,  with  Reference  to  Garnishn>ent. 

Property  validly  assigned  cannot  be  reached  by  garnishment, 
since  it  no  longer  belongs  to  the  assignor,  and  thei-efore  his 
creditor  cannot  make  his  money  out  of  it.  The  assignee,  if 
summoned  as  garnishee,  may  unequivocally  answer  that  he  has 
nothing  of  the  defendant's  in  his  possession.  Should  the  credi- 
tor believe    the    assignment    fraudulent,  he  may  traverse   the 

*  Huntington  v.   Risden,  43  Iowa,  *  Samuel  v.   Airnew,   80   111.    553; 

517.  Waldron  v.  Wilcox,  13  li.  I  518 

2  Fuller  V.  O'Brien,  121  Mass.  433. 
14 


210  GARNISHING. 

answer  and  introduce  evidence  aliunde  to  show  that  the  prop- 
erty still  bclonirs  to  the  dehtor  and  is  subject  to  garnishment 
in  the  hands  of  tlie  alleged  assignee.  *  In  such  case,  upon 
whom  is  the  burden  of  j)roof  to  sliow  the  validity  of  the  assign- 
ment? It  would  seem  that  knowledge  of  it  is  more  particularly 
in  the  mind  of  the  garnishee;  but,  on  the  other  hand,  his 
answer  must  stand  as  true  until  shown  to  be  false;  he  is,  if 
honest,  a  disinterested  third  person  who  ought  not  to  be  made 
bear  the  burden  of  litigation  between  the  creditor  and  the 
debtor;  and  if  the  creditor  would  hold  him  accountable,  he 
should  make  out  his  own  case.  Certainly  the  creditor  should 
make  out  a  prima  facie  case  of  fraud  and  collusion  between 
the  debtor  and  the  assignee  before  the  latter  can  be  obliged  to 
establish  the  validity  of  the  assignment.  "Where  the  question 
of  validity  turns  upon  the  legality  of  the  consideration,  the 
onus  would  be  upon  the  assignee  summoned  as  garnishee,  upon 
a  comparatively  slight  showing  of  fraud  by  the  creditor,  since 
the  assignee,  being  a  party  to  the  alleged  contract  of  assign- 
ment must  be  presumed  to  know,  better  than  a  stranger  to  the 
contract,  the  exact  character  and  amount  of  the  consideration 
he  professed  to  have  paid  and  the  particular  terms  of  the 
transaction.  2 

He  is  not  liable  in  garnishment,  though  he  may  have  had  no 
notice  of  the  assignment  up  to  the  time  of  the  summons.  Sub- 
sequent notice,  received  before  filing  his  ansAver,  will  enable  him 
to  set  up  the  fact  of  transfer  and  escape  judgment  against  him 
as  garnishee.  True,  acceptance  of  the  transfer  on  his  part 
w^ould  be  necessary  to  complete  the  assignment;  but  if  the 
assignor  already  owed  him  a  sum  sufficient  as  valid  consid- 
eration, he  may  accept  so  soon  as  he  knows  of  the  assignment 
on  the  part  of  his  debtor;  and  there  is  no  reason  why  another 
creditor  of  the  same  debtor  should  gain  any  advantage  over 
him  by  serving  him  with  the  process  of  garnishment  before  he 
knows  of  such  payment  to  himself. 

Whatever  amounts  to  the  payment  of  a  debt  due  the  garn- 

»  Hecht  V.  Green,  Gl  Cal.  2G9.  ^  Maher  v.  llvown,  2  L  i.  492;  Gid- 

diugs  V.  Coleman,  12  N.  H.  153. 


ASSIGNMENT    WITH    EEFEKENCE    TO    GARNISHMENT.  211 

isliee  so  as  to  cancel  any  oblii^ation  he  may  have  been  under  to 
the  defendant,  will  justify  him  in  answering  that  he  does  not 
owe  the  latter,  even  thongh  his  knowledge  of  such  cancellation 
should  reach  the  garnishee  after  the  summons;  but,  if  the 
garnishee  and  the  defendant  are  mutually  indebted  to  each  other 
and  their  accounts  not  liquidated,  that  fact  should  be  sufficient 
for  the  discharge  of  the  garnishment.  If,  before  summons, 
the  garnishee  has  accepted  an  order  from  the  defendant  to 
pay  all  the  funds  in  his  hands,  belonging  to  the  defendant,  to 
another  creditor  who  has  accepted,  the  summons  would  come 
too  late  to  avail  the  plaintiff.  ^ 

An  assignment  having  been  agreed  upon  between  the  debtor 
and  the  garnishee,  based  on  valid  consideration,  but  yet  lacking 
in  some  of  the  legal  forms  of  transfer,  may  be  perfected  after 
the  service  of  the  garnishment  and  successfully  set  up  against 
the  garnishment. 2 

Either  defendant's  property  in  the  hands  of  a  thirci  person,  or 
debt  due  him  by  such  third  person,  may  be  equitably  assigned 
so  as  to  be  beyond  the  reach  of  garnishment.  Though  the 
assignor  may  still  be  competent  to  manage  the  property  or 
collect  the  debt  in  behalf  of  others,  yet  as  he  retains  no  inter- 
est, it  cannot  be  subjected  to  garnishment  as  his  property  or 
credit. 

An  assignment,  to  pay  a  debt,  of  more  property  than  is  suffi- 
cient for  the  purpose,  would  not  prevent  a  creditor  of  the 
assignor  from  attaching  the  excess  in  the  hands  of  the  assignee.  ^ 
In  all  cases,  notice  of  assignment  should  be  given  to  the  / 
assignor's  debtor,  since  he  might  otherwise  answer  an  interro- 
gatory, whether  he  is  indebted  to  the  defendant  in  an  attach- 
ment suit,  in  the  affirmative,  and  be  held  liable,  notwithstand- 


1  Dobbins  v.   Hyde,   37    Mo.  114;  10  Met.  (Mass.)  58;  Bourne  v.  Cabot, 

Botsford  V.  Simmons,  32  Mich.  352;  3  Id.   305;  Ward  v.  Lewis,    4   Pick. 

Legro  V.  Staples,  IG  Me.  252;  Colt  v.  518;  Cuttsw.  Perkins,  12  Mass.  200. 

Ives,  31  Ct.  25;  Adams  v.   Robinson,  2  u.  S.  v.  Vaughan,  3  Binney,  394. 

1  Pick.  461;  Mansard  v.   Daley,    114  ^  B.^yi^er   v.    Osborne,  71    Me.    69; 

Mass.  408;  Newell  v.  Blair,  7  Mich.  Abbotts.  Stinchfleld,  71  Me.  213. 
103;  Dwight  «.    Bank   of  Michigan, 


212  GARNISHING. 

ing  a  valid  transfer  so  far  as  tlic  defendant  and  the  assignee  or 
transferee  are  concerned.^ 

Whatever  is  exempt  from  execution  is  also  exempt  from 
garnishment.  3 

If  the  garnishee  is  himself  a  lien-holder,  or  if  he  is  an  ordi- 
cary  creditor  in  possession,  he  may  disclose  such  fact.  The 
property  or  credit  would  not  be  subject  to  garnishment  to  the 
displacement  of  the  pre-existing  lien;^  but,  except  so  far  as 
possession  by  a  creditor  of  his  debtor's  property  gives  a  com- 
mon-law lien,  the  fact  of  the  garnishee's  being  an  ordinary 
creditor  would  not  necessarily  defeat  the  garnishment  or  place 
the  attaching  creditor  lower  in  rank  than  such  third  person. 
The  latter  might  intervene  and  set  up  his  claim,  or  bring  a 
separate  attachment  suit.^ 

If  the  defendant  has  authorized  the  payment  of  what  is  due 
to  him  to  a  third  person,  and  the  garnishee  has  agreed  so  to 
pay,  and  the  assignee  has  assented,  garnishment  by  the  creditor 
of  the  defendant  will  not  hold. ^  The  assent  of  the  assignee  is 
essential  to  the  perfection  of  the  assignment,  and  therefore  a 
mere  direction  to  the  garnishee  to  make  the  transfer  without 
)    the  beneficiary's  knowledge  or  consent,  would  not  be  a  complete 

1  Golson  V.   Powell,   32    La.   Ann.  8  Pick.  280;  Bfidlnra  v.  Tucker,  1  Td. 

521  889;  Sibley  ?).  Lefflngwell,   8   Allen, 

'  Flnurnay  v.  Lyon,  62  Ala.  213;  584;  Grant  v.    Shaw,   16   Mass.  341; 

Pvowell  V.  Powell,  53  Vt.  302;  George  Picquet  v.  Swan,  4  Mason,  443;  Mit- 

T.   Bassett,    54   Id.  217;  Fanning  v.  cliell  v.  Byrne,  6  Bich.   (S.    C.)  171; 

First  Nat.  Bank,  76111.  53;  Holbrook  Central  Bank   v.  Prentice,    18  Pick, 

r.  Baker,   5   Me.   309;  Davenport  v.  396;    Callender   v.   Furbish,  46   Me. 

Swan,  9  Humph.  186;  Hall  v.  Page,  226. 

4  Ga.  428;  Staniels  d.  Raymond,   4  *  Rodrigues   v.    Trevino,   54  Tex. 

Cush.  314;    Andrews  v.  Ludlow,    5  198;  Adour  «>.   Seeligson   &  Co.    Id. 

Pick.    28;    Christmas  v.   Biddle,   13  594;  Allen  v.   Hall,   5   Met.   (Mass.) 

Pa.  St.   223;  Gery  «.  Ehrgood,  31  Id.  263;  Lewis  v.    Harwood,   28   Minn. 

329;  Lyle  «.  Barker,  5  Binney,  457;  428;  Coone  «.  Braun,   23  Minn.  239; 

Plant  r.  Smythp,  4o  Gal.  161;  W.lson  Allen  v.  Megguire,   15    Mass.    490; 

r.  Bartholomew,  45  Mich.  41;  Ander-  Peck    v.    Stratton,    118    Mass.    406; 

son  V.  Odell,  51  Id.  492.  Bailey  v.  Ross,  20  N.  H.  302;  Roma- 

**  Mean  v.  New  York,   Housalonic  gosa  v.  Nodal,  12  La.  Ann.  341. 

&  Northern  R.   R.  Co.   45   Ct.   225;  ^  Botsford  v.   Simmons,   32   Mich. 

Kergin  t;.  Dawson,  6   111.  >6;  Haven  352;  Van  Staphorsl y.  Pierce, 4 Mass. 

1).  Low,  2  N.  H.  13;  Curtis  v.  Norris,  258. 


ASSIGNMENT    WITH    EEFEKENCE    TO    GAIINISUMENT.  213 

assignment,  and  garnishment  would  hold  in  a  suit  ngainst  the 
assignor.^ 

A  debtor  cannot  assign  money  not  earned  but  to  become  due 
under  an  appointment  promised  but  not  obtained,  so  as  to  pro- 
tect it  from  garnishment  when  it  shall  become  due.^ 

An  assignment  by  an  insolvent  debtor  to  trustees  for  the  pay- 
ment of  his  creditors  pro  rata,  will  not  render  the  trustees 
liable  to  garnishment  at  the  suit  of  one  of  his  creditors,  while 
the  trust  remains  unclosed,  and  the  creditor  not  yet  entitled  to 
a  dividend.^  After  such  assignment,  money  due  the  assignor 
cannot  be  reached  by  any  creditor  through  the  process  of  garn- 
ishment.* Such  assignment,  however,  must  be  a  valid  one,  for 
tlie  holder  of  funds  invalidly  assigned  may  be  garnished  in  an 
attachment  suit  against  the  assignor. ^  And  if  the  assia'nment 
is  valid,  the  holder  is  exempt  from  garnishment  in  a  suit 
against  the"assignor  only  to  the  amount  assigned;  any  surplus 
remaining  in  his  hands  is  liable  to  the  process,  as  a  matter  of 
course,  just  as  though  there  had  been  no  act  of  assignment.^ 

The  assignment  of  a  judgment,  upon  agreement  that  the 
assignee  shall  retain  what  is  due  him  and  pay  the  balance  to 
another  creditor  of  the  assignor,  will  not  render  the  assignee 
garnishable,  after  the  collection  of  the  money  upon  thejudg- 

»  Ceuter  v.   McQuesten,    18    Kan.  Connelly    v.   Harrison,    16    Id.    41; 

476;  People  v.  Johnson,    14  HI.  342;  McGuire  ».  Pitls,  42  Iowa,  535. 

Cushraau  ».    Haynes,   20   Pick.  132;  2  Egan  v.  Luby,  133  Mass.  543. 

Woodbridge  v.  Perkins,  3  Day,  364;  *  Massachusetts   National  Bank  w. 

Baker  v.  Moody,  1  Ala.  315;  Myatt  v.  Bullock,  120  Mass.   86;  Mansfield  «. 

Lockhart,  9  Ala.  91;  Clark  ».  Cilley,  Rutland  Manf.    Co.   52  Vt.   444.     In 

36  Ala.  652;  Hearn  «.  Foster,  21  Tex.  this  case,  the  trust  required  that  the 

401;    Massachusetts    Nat.    Bank    ».  creditors  be  paid  pro  rata,  but   the 

Bullock,  120  Mass.  86;  Kelly  «.  Rob-  trustees   seein  to   have   made   some 

erts,  40  N.  Y.  432 ;  McCoid  t).  Beatty,  preferences   among     the     creditors. 

12  Iowa,  299;  Mayer  0.  Chattahoochie  Yet,  in   the    attachment   suit,  it  was 

National  Bank,  .M  Ga.   325;  Redd  c.  doubtless  correctly  decided  that  they 

Burns,  58  Ga.  574;   Briggs  «.   Block,  could  not  be  made  garnishees.    Schla- 

18  Mo.  281;  Sproule   i).  McNulty,  7  eter  v.  Raymond,  7  Neb.  281. 

Mo.   62;    Botstbrd  «.    Simmons,    32  *  Dehner  «.  Helmbacher  Forge,  etc. 

Mich.  352;  Brown  «.  Foster,  4  Cush.  Mills,  7  111.  App.  47. 

214;  Mansard  «.  Daley,  114  Mass.  403;  ^  Mansard  v.  Daley,  114  Mass.  408. 

State    V.   Brownlee,    2    Speers,   519;  ^Qiles  w.  Ash,  123  Mass.  353.      See 

i)olsen  V.  Brown,    13  La.   Ann.   551;  First  Nat.  Bank  /•.  Portland  &  0.  Ry. 

Co.  2  Fed.  Rep.  831. 


214  GAKNISIIING. 

ment,  in  an  attacTiment  suit  ag-ainst  tlie  assignor.  The  reason 
is  that  the  assignor  no  longer  has  any  interest  in  the  judgment 
or  its  proceeds — part  having  been  transferred  to  the  assignee  in 
payment,  and  the  balance  in  trust  lor  the  payment  of  another 
ci'editor.  1 

One  summoned  as  a  garnisliee  indebted  to  the  attachment 
defendant,  wlio  knows  that  the  indebtedness  has  been  trans- 
ferred by  assignment,  yet  makes  answer  acknowledging  that  lie 
owes  the  defendant,  and  makes  no  disclosure  of  the  assignment, 
not  only  becomes  chargeable  as  garnishee, 2  but  remains  liable 
to  the  assignee.3  The  latter  is  no  party  to  the  attachment  suit, 
and  the  garnishee  cannot  conclude  him,  or  debar  him  of  any 
of  his  legal  rights  by  answering  untruly  that  he  owes  the 
defendant.  If,  upon  the  return  day  to  the  writ  of  garnishment, 
(where  the  proceeding  against  the  garnishee  is  a  separate, 
though  ancillary  action,)  the  plaintiff  should  be  defaulted  for 
failure  to  appear,*,  the  garnishee  cannot  waive  the  default  and 
voluntarily  submit  to  judgment,  to  the  injury  of  the  assignee. ^ 

An  order  from  a  client  to  his  attorney,  in  a  pending  case,  to 
pay  over  whatever  may  be  recovered  to  some  named  tliird  per- 
son is  not  an  assignment  of  the  client's  interest  so  as  to  defeat 
the  garnishment  of  the  credit  in  a  suit  against  hiai,  even  though 
the  attorney  should  consent  to  comply  with  the  request.^ 

An  assignment  for  the  benefit  of  creditors,  accepted  by  the 
assignee  but  not  by  all  the  creditors,  will  not  preclude  the  garn- 
ishment of  a  debt  due  the  assignor  by  a  creditor  who  did  not  ac- 
cept the  assignment,  unless  it  is  proved  that  the  sura  held  by  the 
garnishee  is  necessary  to  pay  the  creditors  who  have  elected  to 

J  Hughes  V.  Sprague,  4  111.  App.  Brady  v.  Tabor,  29  Mich.  199 ;  Eed- 
301.  man  v.  White,  25  Mich.  526;  Stadler 

2  Tabor  v.  Van  Vranken,  39  Mich.      ■».  Moors,  9  Mich.  204. 

793.  s  bobbins    v.    Hyde,   37  Mo.   114; 

3  Id;  Johns;  n».  De.\ter,  38  Mich.  Dickey  t?.  Fox,  24  Mo.  217;  Funk- 
C95.  honser  u.  How,  24  Mo.  49;  Gates  v. 

*  Wilcox  «.  Clement,   4  Den.  163;  Kerby,  13  Mo.  157;  Andrews  ?>.  Her- 

McCarty  v.   McPherson,    11    Johns.  ring,  5  Mass.   212;  Johnson  v.  Dex- 

406;  Shufelt    v.   Cramer,   20   Johns.  ter,  38  Mich.  695. 

309;  Barber  v.  Parker,  11  Weud.  52;  *  White  v.  Coleman,  130  Mass.  316. 


ASSIGNMENT    WITH    REFERFNCE    TO    GARNISHMENT.  215 

come  in  under  the  assignment  or  trnst  deed.*  If  the  amount 
of  assets  assigned  is  greater  than  the  aggregate  of  the  sum  due 
those  creditors  wlio  assent  to  the  assignment,  the  surphis  is 
liable  to  garnishment  in  the  hands  of  the  assignee,  by  other 
creditors.  2 

Property  assigned  for  tlie  benefit  of  creditors,  to  be  converted 
into  money  by  the  trustees  anxi  distributed  j9r<9  rata  among  the 
creditors,  is  not  garnisliable  in  the  hands  of  tlie  trustees,  fur  the 
debt  due  one  of  the  creditors,  until  after  such  convei's.on.^ 

It  sometimes  happens  tliat  the  defendant  has  transferred  his 
claim  against  his  debtor  without  giving  notice  to  the  lattei\ 
In  such  case,  the  latter  being  interrogated  in  an  attachment 
suit  against  the  defendant  may  admit  indebtedness  and  be  law 
fully  held  liable.*  Under  such  circumstances,  his  payment  of 
the  amount  of  the  debt  into  court  under  order  would  acquit 
him  of  all  further  liability  to  the  defendant-  The  transferee  of 
the  latter  might  intervene  to  contest  the  right  of  the  attach- 
ing creditor  to  reach  this  sum.  If  he  should  suffer  loss,  he 
must  attribute  it  to  the  neglect  of  himself  and  the  defendant  in 
not  giving  due  notice  of  the  transfer,  so  as  to  enable  the 
garnishee  to  answer  that  he  is  not  indebted  to  the  defendant. 

Notice  by  creditors  to  the  debtor  of  their  debtor  that  they 
intend  to  issue  process  of  garnishment  against  him  is  wholly 
without  legal  effect,  and  he  may  pay  his  debt  without  incurring 
any  liability  to  the  notifying  creditors.  5* 

The  plaintiff  may  reach  property  in  the  hands  of  a  garnishee 
fraudulently  transferred  to  the  latter  by  the  defendant.®  Here 
is  a  case  where  the  defendant  could  not  recover  the  property  at 
law,  yet  his  creditor  may ;  for  the  fraudulent  transfer  debars  the 
defendant  from  sueing  for  it,  though  it  is  no  estoppel  should  the 
plaintiff  in  an  attachment  suit  seek  to  reach  the  property  in  the 
transferree's  hands  by  the  process  of  garnishment.  Suppose 
the    fraudulent  transfer  is   under  the  form  of  a  sale:  so  far  as 


^  Douglas  «.  Simpson    &   Trustee,  *  Golson   v.   Powell,    33   La.  Ann. 

121  Mass  281.  521. 

2  F.vei'ett  v.  Walcott,  15  Pick.  97,  °  Fisher  v.  Hall,  44  Mich.  493. 

3  Mass.   Nat.  B'k.  «.   Bullock,   120  «  GiUtersou  v.  Morse,  58  N.  H.  539 
Aiass.  8G. 


216  GARNJSI1I.\0. 

the  plaiiitiff  in  tlie  attucliinent  suit  is  concerned,  tlie  vendee 
may  be  treated  as  the  mere  custodian  of  the  debtor's  proj)erty; 
but  so  far  as  tlie  fraudulent  vendor  is  concerned,  he  would  be 
estopped  from  recovering  the  property  under  allegation 
of  his  own  wron£r-doinfr.  The  i^laintilf  in  an  attachment  suit 
against  the  defendant  could  treat  such  property  as  still  belong- 
ing to  the  latter,  though  in  the  hands  of  a 'third  person;  yet 
the  defendant  could  not  claim  it  as  his  and  have  his  right  of 
action  against  such  third  person.  Here  then  is  a  case  M'here 
the  plaintiff  asserts  indebtedness  to  the  defendant  by  another, 
and  virtually  sues  upon  it,  thus  doing  what  the  defendant  him- 
self could  not  do.  The  general  rule,  that  the  plaintiff  can  have 
no  greater  right  against  the  garnishee  than  the  defendant  him- 
self possesses,  is  thus  subject  to  an  exception. 

Fraud  estops  the  garnishee  from  successfully  claiming  the 
benefit  of  exemption.  If  he  has  wrongfully  obtained  posses- 
sion of  the  defendant's  property  under  a  chattel  mortgage,  and 
has  withheld  the  mortgage  from  record  in  fraud  of  defendant's 
creditors,  he  cannot  be  heard  to  set  up  his  mortgage  lien  to 
defeat  the  garnishment. i  "When  a  stranger  to  proceedings  by 
attachment  is  about  to  be  wronged  by  reason  of  a  previous 
fraudulent  action  of  the  defendant,  he  niay  be  allowed  to  inter- 
vene and  show  that  what  the  garnishee  holds  as  the  money  of 
the  defendant  really  belongs  to  himself,  though  the  defendant 
would  be  estopped  from  setting  up  his  own  wrong-doing.  ^  As 
a  general  rule,  however,  the  attaching  creditor  can  only  reach, 
in  the  hands  of  the  garnishee,  what  the  defendant  might  have 
recovered  had  there  been  no  garnishment. ^ 

^  Cummiiigs  v.  Fearey,  44  Mich.  39,  as  the  dehtors  of  the  agent,  the  prin- 

iipon  a  statute  requiiiag  that  chattel  cipal  was  allowed  lo  intervene,  prove 

mortgages      be    recorded.      United  tlie  facts  and  defeat  the  garnishment. 

States  V.    Vauglian,  3  Binney,  3'J4;  ^  U.  States  «.  Robertson,  5  Pet.  641; 

Lamb  v.  Stone,  11  Pick.  527.  Wilcox  v.  Mills,  4  Mass.  218;  Harris 

2  Turner  v.  Burnell,  48  Wis.  221,  in  v.  Phrenix  Ins.  Co.  35  Ct.  310;  Brown 

whicli  the  defendant,  an  agent  of  tlie  v.  Silsby,  10  N.  H.  521;  St.  Louis  v. 

intervenor,  had  caused  himself  to  be  ReL^enfuss,   28    Wis.   144;     Myer  v. 

credited  in  an  estate  account  instead  Liverpool,  etc.,  Ins.  Co.  40  Md.  595, 

of  his  principal.     When  the  adminis-  Burton  v.  District  Township,  11  Iowa, 

trators  of  the  estate  were  garnished  100;  Tupper  v.  Cassell,  45  Miss.  352  j 


ASSIGNMENT    WITH    KEFKKENCE    TO    GAKNISIIMENT.  217 

One  is  not  liable  to  garnishment  if  he  has  paid  what  lie  owed 
the  defendant  in  attachment  by  a  bank  check,  though  the  latter 
may  not  have  presented  the  check  to  the  bank  and  drawn  the 
inoney  prior  to  the  service  of  the  process  of  garnishment  upon 
the ,  drawer  of  the  clieck.i  It  is  true  that  the  funds  in  the 
bank  are  still  under  his  control  so  that  he  might  stop  payment 
of  the  check;  and,  so  far  as  the  bank  is  concerned,  he  has  the 
right  to  control  the  deposit;  but  he  has  no  moral  right  to  do  so, 
conside'ring  his  relation  to  the  payee  who  has  taken  the  check  in 
payment  or  earnest  of  payment.  At  all  events,  the  drawer,  as 
garnishee,  is  not  under  tlie  slightest  obligation  to  countermand 
liis  own  check  for  the  purpose  of  enabling  a  professed  creditor 
of  the  payee  to  attach  the  credit  in  his  hands  and  suspend  settle- 
ment of  his  account  with  the  payee  for  an  indelinite  time. 

If  a  depositor  puts  money  in  bank  to  the  credit  of  another 
to  whom  a  certificate  of  deposit  is  issued  by  the  bank,  the  fund 
can  be  reached  by  the  garnishment  of  the  bank  in  a  suit  against 
the  holder  of  the  certificate  but  not  in  a  suit  against  the 
depositor.  2 

An  obligation  of  a  garnishee  payable  in  negotiable  promis- 
sory notes  at  the  time  of  summoning  the  garnishee,  is  not 
garnishable  in  an  attachment  proceeding  against  the  obligee, 
when  it  does  not  appear  that  there  is  any  debt  absolutely  due 
him.  3  But  a  promissory  note  may  be  garnisheed  after  maturity 
if  owned  by  the  defendant,  and  it  may  safely  be  paid  into  court 
after  judgment  against  the  defendant.^ 

There  are  circumstances  under  which  the  garnishee  will  be 
held  liable,  though  the  defendant  coidd  not  immediately  re- 
cover of  him:  under  some  statutes,  when  the  debt  is  not 
yet  due; 5  when  the  obligation  of  the  garnishee  is  to  two  per- 
sons jointly,  but  one  of  whom  is  the  defendant  in  the  attach- 

Peet-y.  Whitmore,  16  La.  Ann.  48;  ^  Fuller  ?j.  O'Brien,  121  Mass.  422. 

Coble  V.  JSTouemaker,  78  Pa.  St.  501 ;  *  Somers  v.  Losey,   48   Mich.  294, 

Woodliouse  V.    Commonwealth   Ins.  witli  reference  to  §  G445  Mich.  Com- 

Co.  54  Id.  307.  piled  Laws ;  Howell's  Stat,  g  8037. 

1  Getchell  v.  Chase,  124  Mass.  366.  ^  Nichollsw.  Scoliekl,-2  R.'  I.  123; 

'^  Exchange    Bank    c.    Gulick,    24  Clapp  v.  Hancock,  1  Allen,  394. 
Kan.  359. 


218  GAKNISIIINO. 

ment  suit;*  wlicn  notice,  on  the  part  of  the  defendant,  is  a  pre- 
requisite to  recovery.^ 

Where  the  defendant  has  property  or  funds  in  the  luinds  of  a 
sheriff,  constable,  administrator,  executor,  attorney,  agent,  bailee 
or  trustee,  under  such  circumstances  that  he  cannot  institute 
suit  for  it  without  previous  notice  or  demand,  such  property  or 
funds,  if  otherwise  liable  to  be  subjected  to  garnishment,  can- 
not be  exempt  for  want  of  such  preliminary  action  on  the  i)art 
of  the  defendant;  for,  if  so,  he  might  foil  the  thrust  of  the 
creditor  by  purposely  avoiding  the  giving  of  notice  or  the 
making  of  the  demand.  The  general  rule  is  that  the  creditor 
lias  no  greater  rights  against  the  garnishee  than  the  defendant 
had  before  the  summons;  that  he  steps  into  the  shoes  of  the 
defendant  and  prosecutes  for  him  that  the  credit  or  property  of 
the  latter  may  be  subjected  to  the  payment  of  such  judgment 
as  may  be  obtained  against  him;  but  here  is  a  reasonable  excep- 
tion to  the  rule,  so  manifestly  just  that  the  opposite  course  is 
clearly  seen  to  defeat  the  purposes  of  justice. 

Whether,  as  under  the  custom  of  London,  the  plaintiff  may 
"surmise"  that  his  debtor  has  property  in  the  hands  of  another, 
or  funds  in  such  hands,  liable  to  garnishment,  and  may  there- 
upon garnish  himself,  is  not  everywhere  settled  in  this  country. 
It  has  been  held  that  the  plaintiff  cannot  garnish  himself. ^ 

Sec.  5.    Legal  Custodians. 

Money  and  property  in  an  officer's  hands  under  such  circum- 
stances as  to  be  in  the  custody  of  the  law,  is  not  subject  to 
garnishment  or  attachment.* 

1  Miller  «.  Richardson,  1  Mo.  310;  Hoag  «.  Hoag,  55  Id.  172;  Belknap 
Whitney  v.  Miinroe,  19  Me.  42.  v.  Gibbens,  13  Met.  (Mass.)  471.  Con- 

2  Staples  V.  Staples,  4  Me.  532;  tra:  Coble  «.  Nonemaker.  78  Pa.  St 
Woodbridge  -y.  Morse,  5  N.  H.  519;  501;  Lyman  v.  Wood,  42  Vt.  113; 
Quigg  V.  Kittredge,  18  N.  H.  137;  Grayson  ®.  Veeche,  12  Martin,  (La.) 
Corey  v.  Powers,  18  Vt.  588 ;  Thiiyer  088 :  Kichard.^on  v.  Gurney,  9  La. 
t;.  Sherman,  12  Mass.  441;  Manny.  285.  See  Boyd  ®.  Bayless,  4  Humph. 
Bulord,  3  Ala.  312;  Riley  v.  Hirst,. 2  386;  Arlege  v.  AYhite,  1  Head,  241. 
Pa.  St.  346.  *  *  Wendell   v.  Pierce,  13  N.  H.  502; 

» Knight  V.  Clyde,  13  R.  1.518;  Dawson  v.  Holcomb,  1  Ohio,  275; 
Blai-sdell    v.    Ladd,    14   N.    H.    129;       Dean  v.  McGavock,  7  Humph.  132; 


LEGAL    CUSTODIANS. 


219 


ITo  one  would  contend  that  property  in  the  possession  of  a 
sheriff,  seized  in  execulion,  to  satisfy  a  judgment,  could  be  made 
tlie  subject  of  garnishment  in  an  attachment  suit  brought  by  a 
creditor  of  the  judgment-creditor  who  had  sued  out  the  execu- 
tion. Such  property,  thus  seized  by  the  sheriff,  does  not  belong 
to  the  judgment-creditor  and  cannot  be  attached  by  any  other 
as  his.  Now,  after  the  sale  of  such  property  under  the  writ, 
do  the  proceeds  belong  to  the  judgment-creditor  in  such  a 
sense  as  to  be  attachable  as  his  by  another  suitor  in  a  new  suit? 
They  do  not  yet  belong  to  him.  The  sheriff  has  his  time  for 
i-eturning  the  writ.  Good  reasons  exist  for  the  legal  delay,  such 
as  the  possibility  of  mistakes  to  be  corrected,  the  awarding  of 
the  costs  by  the  conrt,  etc.  If,  when  the  time  has  arrived  for 
paying  over  the  proceeds  to  the  plaintitTin  satisfaction  of  the 
judgment,  the  sheriff  should  fail  to  do  so,  the  law  gives  the 
phaintiff  his  proper  remedy.  But,  before  the  money  lias  been 
paid  to  the  plaintiff,  it  is  not  his.     It  is  in  process  of  j)ayment, 


Clymer  i).  Willis,  3  Cal.363;  Curliog 
1).  Hyde,  10  Miss.  874 ;  Alston  -o.  Clay, 
2  Haywood,  171 ;  Millison  v.  Fisk,  43 
111.  1*12,  118;  Roberts  v.  Dunn,  71  HI. 
46 ;  Lightuer  v.  Steinagel,  33  HI.  513 ; 
Pierce  v.  Carleton,  12  111.  864,  (but  a 
sheriff  may  be  garnished  for  a  sur- 
plus' in  his  hands  received  on  execu- 
tion, Jb.)  Ross  V.  Clarke,  1  Dall.  (Pa.) 
3o4;  Hunt  V.  Stevens,  3  Iredell,  865; 
Reddick  v.  Smith,  8  Scam.  451 ;  Lath- 
rop  V.  Blake,  8  Foster,  46;  Staunton 
i;.  Holmes,  4  Day,  (Ct.)  87,  96;  Odi- 
orne  v.  Colley.  3  N.  H.  06;  Winchell 
«.  Allen,  1  Ct.  385 ;  Beers  v.  Place,  86 
Ct.  578;  The  Oliver  Jordan,  3  Curt. 
414;  Watson  i;.  Todd,  5  Mass.  271; 
Brooks  V.  Cook  et  al.  8  Mass.  246 ; 
Vinton  v.  Bradford,  13  Id.  114; 
Thompson  v.  Marsh  et  al.  14  IVIass. 
269;  Burlingame  «.  Bell,  16  Mass. 
818 ;  Robinson  v.  Ensign,  6  Gray,  300 ; 
Barnes  ».  Treat  et  al.  1  Mass.  271; 
Thompson  v.  Brown,  17  Pick.  462; 
Ladd  V.  Gale,  57  N.  H.  210;  Cur- 
ling ^1.  Hyde,  10  Miss.  374;  Blair*. 


Canty,  2  Speers,  (S.  C.)  34;  Turner®. 
Fendall,  1  Cranch,  117;  Jones  v. 
Jones,  1  Bland,  (Md.)  448  ;  Burroughs 
V.  Wright,  16  Vt.  619;  Prentiss  v.' 
Bliss,  4  Vt.  513;  Couaat  v.  Bickuell, 
1  D.  Chipman,  (Vt.)  50;  First  v.  Mil- 
ler, 4  Bibb.  811;  Moore  «.  Whitten- 
burg,  13  La.  Ann.  22;  Dubois  «.  Du- 
bois, 6  Cowen,  494;  Taylor  v.  Carryl, 
24  Pa.  St.  259;  Crane  v.  Freese,  1 
Har.  (N.  J.)  305;  Moore  v.  Graves,  3 
N.  H.  408  ;  Farmers'  Bank  v.  Beaston, 
7  Gill  &  J.  (Md.)  421;  The  Robert 
Fulton,  1  Paine,  620 ;  Benson  v.  Berry, 
55  Barb.  020;  Freeman  «.  HoAve,  24 
How.  450;  Harbiscm  v.  McCartney,  1 
Grand,  Pa.  172;  Lewis  v.  Buck,  7 
Minn.  104 ;  Walker  v.  Foxcroft,  2  Me. 
270;  Strout  V.  Bradbury,  5  Id.  813; 
Oldham  v.  Scrivener,  3  B.  Men.  579 ; 
StilJman  v.  Is.iam,  11  Ct.  124;  Thayer 
V.  Ty.er,  5  Allen,  94;  Pace  v.  Smith, 
57  Tex.  555.  But  a  constable  maybe 
garnished  for  funds  collected  by  exe- 
cution under  Wis.  Stat.  §  2169 :  Storm 
V.  Adams,  56  Wis.  137. 


220  GARNISHING. 

i^oiiiii-  from  the  defendant  to  the  jdaintiff,  not  attachnhle  now  as 
tlio  defendant's  money,  but  .would  certainly  bo  returnabhi  to 
the  defendant  should  the  judgment  be  annulled  for  any  rea- 
son. 

While  in  the  custody  of  the  sheriff,  tlie  money  cannot  be 
deemed  a  credit  beloni^-ing  to  the  plaintiff.  The  relation  of 
debtor  and  creditor  does  not  exist  between  them.  Were  the 
money,  made  by  execution,  liable  to  garnishment  sued  out  by  a 
creditor  of  the  judgment-plaintiff  of  the  original  suit,  either  as 
the  money  or  credit  of  such  plaintiff  in  the  hands  of  the  sheriff 
as  a  third  person,  where  would  litigation  end?  The  person 
attaching  the  money  could  not  enter  the  original  judgment  satis- 
fied, because  he  wonld  not  be  a  party  to  tlie  record  of  the  case. 
Besides,  the  sheriff  is  not  the  agent  of  the  plaintiff  wlio  sued 
out  the  writ  of  execution  by  which  the  money  comes  into  the 
officer's  hands.  However,  when  litigation  has  ended,  the  money 
ready  to  be  paid  to  the  plaintiff  may  be  attached  in  the  siieriif's 
hands,  under  certain  circumstances,  as  hereafter  shown. 

Money  made  by  a  sheriff,  on  execution,  is  in  his  liands  as  a 
legal  and  official  custodian,  not  as  the  agent  or  trustee  of  the 
judgment-creditor.  The  money  is  not  deposited  in  the  sheriff 's 
hands  by  the  plaintiff;  the  particiil/ir  coins  or  notes  collected  by 
the  sheriff  constitute  no  part  of  the  property  of  the  plaintiff: 
why  then  should  a  creditor  of  the  latter  be  allowed  to  reach  such 
money  by  garnishment,  while  it  is  in  the  officer's  hands?  The 
sheriff  has  collected  it  under  Ji. /a.  issued  at  the  instigation  of 
the  plaintiff,  it  is  true;  but,  after  the  execution  of  the  writ,  he 
does  not  ovje  the  plaintiff,  and  is  not  obliged  to  pay  the  col- 
lected money  directly  to  liim,  (though  he  may  legally  do  so,) 
for  payment  into  the  registry  of  the  court  would  satisfy  the 
law,  so  far  as  his  official  duty  is  concerned.  He  is  not  anywhere 
obliged  to  pay  to  the  plaintiff  before  demand  and  before  the  return 
day  of  the  writ,  though  he  has  received  the  money  earlier,  i 

1  Wilder  v.   Bailey   &   Trustee,  3  Hawley,  9  Mo.  332;  Overton  v.  Hill, 

Mass.   289,293;    Farr  ».  Newman,  4  1    Murph.   47;    Clymer  «.   Willis,   3 

Term  R.  651;  Hill  ».  La  Crosse  &  M.  Cal.   363;    Dawson   v.   Holcombe,   1 

11.    Ry.   Co.  14  Wis.  291;   Marvin  v.  Ohio,  13,j;  First  «.  Miller,  4  Bibb.  311 ; 


LEGAL    CUSTODIANS.  221 

A  surplus,  remaining  in  tlie  sheriff's  hands  after  an  execution 
lias  resulted  in  the  payment  of  the  plaintiff  and  the  satisfaction 
of  the  judgment,  clearly  belongs  to  the  defendant.  The  sheriff 
has  no  right  to  withliold  it  from  that  owner.  It  cannot  be 
retained  on  the  pretense  that  it  is  in  custodla  leg'is.  The 
sheriff  does  not  hold  it  in  his  official  capacity.  Tliere  is  no 
reason  way  the  person  holding  such  money  belonging  to  the 
defendant  may  not  be  garnished  in  a  suit  against  the  defendant. 
Such  person  could  not  shield  himself  under  his  garb  of  shriev- 
alty. He  is  none  the  less  a  proper  garnishee  by  being  a 
sheriff.  1  If,  at  any  stage,  the  money  in  the  sheriff's  hands 
belongs  to,  and  is  recoverable  by  the  defendant,  it  ought  to  be 
reachable  by  garnishment. ^  And  the  rule  is  the  same  when 
the  money  is  held  by  a  sheriff's  deputy  under  such  circum- 
stances. 3 

It  will  be  observed  that  it  is  not  only  the  money  and  prop- 
erty of  pul)lic  corporations,  such  as  states,  counties,  townships, 
school  districts  and  cities,  that  is  exempt  from  attachment  and 
garnishment  in  the  hands  of  their  officers,  but  that  money  and 
property  not  belonging  to  such  corporations  are  exempt  when 
held  by  officers  in  such  sense  as  to  be  deemed  within  the  custody 
of  the  law. 

What  has  been  said  of  sheriffs  will  apply  as  well  to  clerics  of 
courts,    prothonotaries,     recorders,    registrars,   justices  of   the 

Chealy    v.    Brewer,   7    Mass.     259;  Jaquett    v.    Palmer,    2    Harrington, 

Barnes  v.  Treat,  Id.  271;  Brooks  v.  (Del.)  144;  King  ».  Moore,  6  Ala.  IGO; 

Cook,  8  Id.  246;  Pollard  v.  Boss,  5  Id.  Hill  v.  Beach,  1  Beas.  31 ;  Adams  i: 

819 ;  Pennimaa  v  Buggies,  6  Id.  166 ;  Lane,  38  Vt.  640. 

Sharp  V.  Clark,  2  Id.  91;  Reddick  v.  ^  Hoffman   v.  Wetherell,  42  Iowa, 

Smith,  4  111.  451;  T  rner  v.  Fendall,  89;  Reifsnyder  v.  Lee,  44  Iowa,  101 ; 

1  Cranch,  117;  Prentiss  v.  Bliss,  4  Vt.  Hurlburt  v.  Hicks,  17  Vt.  193;  Con- 

513;  Dubois  «.  Dubois,  6  Cow.  494;  ant  «.  Bicknell,  1    D.    Chipman,   50; 

Blair  «.  Canty,  2  Speers,  34;    Burrell  Lovejoy  v.  Lee,  35  Vt.  430;   Wood- 

V.  Letson,  Id.  378;    Drane  «.  McGa-  bridge  v.  Morse,  5  N.  H.  519;  Crane 

vock,    7    Humph.    132;    Pawley  «.  v.   Freese,    1    Harrison,  305;   Burle- 

Gaines,     1    Tenn.    208;     Staples    v.  son  i).  Milan,  56  Miss.  399. 

Staples,  4  Me.  532.  ^  Watson  «.  Todd  et  al.  5  Mass.  271, 

'Pierce    v.   Carlton,    12   111.    364;  274.     An  auctioneer,  selling  for  the 

Wheeler    v.    Smith,   11     Barb.   3-15;  sheriff,  is  his  agent:  Grifliu  «.  Helm- 

Hearn    v.    CrutcLer,    4  Yerg.  401 ;  bold,  72  N.  Y.  437. 


GAKXISIIINO. 


peace,  constaWes,  receivers,  dishur.sing  officers,  assignees  in 
bankruptcy,  trustees  of  insolvency,  city  and  county  treasurers, 
comptrollers,  auditors,  commissioners,  etc.,  etc.i 

What  Avas  said  of  the  liability  of  sheriffs  to  garnishment  for 
surplus  funds  in  their  hands,  is  equally  applicable  to  the  officers 
and  official  agents  subsequently  named.  It  will  be  understood 
that  when  any  of  them  holds  funds  which  are  not  within  the 
custody  of  the  law,  he  may  be  garnished. ^ 

It  will  be  readily  perceived  that  the  reason  for  holding  a 
public  officer  exempt  from  liability  to  garnishment  is  totally 
inapplicable  to  an  attoi-ney  at  law,  holding  funds  belonging  to 
his  client;  and,  indeed,  inapplicable  to  any  mere  agent  liolding 
for  a  principal  who  may  be  readily  sued  by  attachment.     "Where 


'  Voorhees  v.  Sessions,  34  li.ch. 
99;  Cockeye.  Leister,  12  Md.  124; 
Gleunw.  Gill,  3  Md.  1;  Williams -y. 
Jones,  38  Md.  55o ;  McPherson  v. 
Snowden,  19  Md.  197;  Groonie  v. 
Lewis,  23  Md.  137;  Haydon  v.  Bank 
of  Wisconsin,  1  Pinney,  61 ;  Field  v. 
Jones,  11  Ga.  413;  Daley  v.  Cunning- 
ham, 3  La.  Ann.  55;  Hanna  -».  Bry, 
5  La.  Ann.  651 ;  Nelson  v.  Connor,  6 
Rob.  (La.)  339;  Gaither  v.  Bellew,  4 
Jones.  488;  Alstons.  Clay,  2  Hayv. 
171 ;  Murrell  v.  Johnson,  3  Hill,  (S. 
C.)12;  Merrill  i;.  Campbell,  49  Wis. 
535;  Hunt  v.  Stevens,  3  Iredell,  365; 
Buchanan  13.  Alexander,  4  How.  20; 
Ross  «.  Clai-ke,  1  Dall.  354;  Averill 
V.  Tucker,  2  Cr.  C.  C.  544;  Cole  v. 
Wooster,  2  Ct.  203;  New  Haven  Saw 
Mill  Co.  V.  Fowler,  28  Id.  103; 
Corbyn  v.  Bollman,  4  Watts  &  Serg. 
342;  Burnham  v.  Fond  du  Lac,  15 
Wis.  193;  Van  Riswick  v.  Lamon,  2 
McArthur,  172;  Bulkley  v.  Eckert,  3 
Pa.  St.  368;  Lodor  v.  Baker,  39  N.  J. 
L.  49;  Dewing  v.  Wentworth,  11 
Cusli.  499;  Bivens  v.  Harper,  59  111. 
21 ;  (See  Jones  v.  Gorhara,  2  Mass. 
375;)  Olivers.  Smith,  5  Mass.  183; 
Triebel  v.  Colburn,  64  111.  376;  Casey 
«j.  Davis,  100  Mass.    124;  Barnard  o. 


Graves,  16  Pick.  41;  Millison  v.  Fisk, 
43  HI.  112;  Neuler  v.  O'Falhm,  18 
Mo.  277 ;  Wallace  v.  Lawyer,  54  lud. 
501 ;  Mechanics  &  Trader's  Bank  v. 
Hodge,  3  Rob.  (La.)  373;  McKenzie 
V.  Noble,  13  Rich.  147;  Eeutley  v. 
Shrieve,  4  Md.  Ch.  412;  Hagedon  «. 
Bank  of  Wisconsin,  1  Pinney,  61 ; 
Huntley  tJ.  Stone,  4  Wis.  91 ;  Taylor 
i;.  Gillian,  23  Jex.  508;  Dunlop  v. 
Paterson  Fire  Ins.  Co.  74  N.  Y.  145; 
Bowden  v.  Schatzell,  Baiiey  Eq.  360; 
Colby  ».  Coates,  6  Cush.  558.  (See 
Decoster  v.  Livermore,  4  Mass.  101 ;) 
Clark  V.  Bopgs,  6  Ala.  809;  Langdon 
V.  Lockett,  Id.  727;  Webb  v.  Mc- 
Cauley,  4  Bush,  8;  Briggs  v.  Block, 
18  Mo.  281 ;  Bivens  et  al.  v.  School 
Directors,  59  111.  21. 

2  Hoflman  v.  Wetherell,  42  Iowa, 
89;  Wendell  ».  Pierce,  13  N.  H.  502; 
Gaither  v.  Bellew,  4  Jones,  488; 
Claik  V.  Boggs,  6  Ala.  809;  Langdon 
V.  Lockett,  Id.  727 ;  Weaver  v.  Davis, 
47  111.  235;  Cole  v.  Wooster,  2  Ct. 
203;  Williams  v.  Jones,  38  Md.  555; 
Robertson  v.  Beall,  10  Id.  125;  Van 
Riswick  V.  Lamon,  2  MacArthur, 
172;  Dunlop  v.  Paterson  Fire  Ins. 
Co.  74  N.  Y.  145. 


LEGAL    CUSTODIAKS. 


223 


tlie  principal,  in  sncli  case,  may  Lave  an  attachment  suit  brought 
against  him,  his  attorney,  whether  at  law  or  in  foct,  may  be 
garnished.  1 

An  Illinois  bank  having  obtained  judgment  against  a  citizen 
of  New  York,  was  sued  there  by  an  alleged  creditor,  who 
sought  to  subject  the  judgment-right  to  garnishment  by  serving 
the  attorney  of  the  judgment  defendant.  The  latter  had  died 
before  this  service;  and  the  court  held  that  the  service  should 
have  been  on  the  legal  representatives  of  the  decedent's  estate 
and  not  on  the  attorney  of  the  defendant  in  the  suit  first 
mentioned.  2 

Money,  credits  and  property  are  in  the  custody  of  the  law 
when  held  by  executors,  administrators,  guardians  and  like  quasi 
officers,  in  their  representative  and  administrative  capacity. 
They  are  accountable  to  courts  for  what  they  administer,  and 
there  is  ordinarily  the  same  reason  that  the  lawn's  custody  of 
things  and  credits  should  not  be  disturbed  in  their  hands,  as 
there  is  for  non-disturbance  in  the  hands  of  a  sheriff  or  other 
officer.  3 


1  Lucas  V.  Campbell,  88  111.  447 
Thayer  v.   Sherman,   12  Mass.  441 
Kelly  «.  McMiuniman,  58  N.  H.  288 
Coburn  «.  Ansart,  3  Mass.  319 ;  HofF- 
mah    ».    Wetherell,    46    Iowa,     89 
Staples  ».  Staples,  4  Me.  532;   Eiley 
t\  Hirst,  2  Pa.    St.   34G;  Kennedy   «. 
Aldridge,  5  B.  Mon.   141;  Weavers. 
Davis,    47    111.    235 ;  "Woodbridge  v. 
Morse,  5  N.  H.  519 ;  Tucker  «.  Butts, 
6  Ga.  580;  Mann   'o.  Luford,   3  Ala. 
312;  Ee  Flandrow,  20  Hun.  36. 

2  Re  Flandrow,  20  Hun.  36. 

3  Roth  V.  Hotard,  32  La.  Ann.  280; 
Deblieux«.  Dotard,  31  Id.  194;  Vier- 
beller  «.  Brutto,  6  111.  App.  95; 
Brooks  13.  Cook,  8  Mass.  246;  Barnes 
V.  Treat  et  al.  7  Mass.  271 ;  Davis  v. 
Davis,  2  Cush.  Ill;  Gassett  v.  Grout, 
4  Met.  (Mass.)  486 ;  Waite  v.  Osborne, 
11  Me.  185;  Commercial  Bank  v. 
Neally,  39  Me.  402 ;  Hansen  v.  Butler, 
48  Me.  81 ;  Sime's   Estate,  Messick's 


Probate,  (Cal.)  100;  Winchell  v.  Al 
len,  1  Ct.  385 ;  Force  «.  Brown,  32  N 
J.  Eq.  118;  Conway  v.  Armington 
11  R.  I.  116;  Perry  v.  Thornton,  7  R 
I.  15 ;  Davis  v.  Drew,  6  N.  H.  399 
Beckwith  «.  Baxter,  3  N.  H.  67 ;  Bank 
of  Chester  v.  Ralston,  7  Pa.  St.  482 
Hess  V.  Shorb,  Id.  231 ;  Parker  v 
Donnally,  4  W.  Va.  648;  Welch  v. 
Gurley,  2  Hayw.  334;  Thorn 
Woodruff,  5  Ark.  55 ;  Fowler  v.  Mc- 
Clelland, Id.  188;  Shewell  «.  Keen, 
2  Wharton,  332;  Barnett  v.  Weaver, 
Id.  418;  Post  «.  Love,  19  Fla.  634; 
Marvel  v.  Houston,  2  Harrington, 
349;  Tillinghast  -y.  Johnson,  5  Ala. 
514;  Mock  v.  King,  15  Ala.  66;  Pic- 
quett  «.  Swan,  4  Mason,  443;  Gee  v. 
Warwick,  2  Hayw.  354;  Young  v. 
Young,  2  trill,  (8.  C.)  425 ;  Godbold 
V.  Bass,  12  Rich.  202 ;  McCreary  v. 
Topper,  10  Pa.  St.  419. 


ZJ,i:  GAENISIIING. 

So  soon  as  tlic  funds  held  by  an  executor,  etc.,  cease  to  Le  in 
the  custody  of  tlie  Law  and  become  recoverable  as  belonging  to 
some  person,  legatee,  heir,  etc.,  the  rule  ceases  to  be  applicable. 
So  also  if  he  is  garnishable  by  statute.  There  is  sometimes  a 
nice  question  as  to  the  time  when  an  administrator's  relation  to 
a  fujid  or  to  property  is  so  changed  as  to  render  him  amenable 
to  garnishment,  but  it  is  certain  that  he  is  liable  when  his 
custody  ceases  to  be  "  the  custody  of  the  law  "  in  its  technical 
signification.  1 

An  executor's  right,  conferred  by  the  will  of  the  testator,  to 
sell  the  property  of  the  estate,  cannot  be  deteated  by  an  attach- 
ment suit  against  one  of  the  heirs  and  devisees,  in  which  the 
latter's  interest  is  attached  and  the  executor  made  garnishee. ^ 
It  can  have  no  eflect  on  the  executor's  right  to  sell  and  convey 
the  property.  3  The  purchaser  at  such  sale  would  obtain  a  good 
title,  notwithstanding  the  garnishment  of  the  executor  with 
reference  to  such  interest.  ■*  Not  till  the  final  order  of  distri- 
bution, can  an  executor  or  administrator  be  garnished  for  the 
interest  due  a  particular  heir  or  devisee.  ^ 

If  the  attaching  creditor  is  the  administrator  of  an  estate, 
he  cannot  garnish  himself  so  as  to  reach  the  funds  in  his  own 
hands  and  render  them  available  to  subserve  his  own  interest 
as  attaching  creditor. ^ 

The  reason  why  an  administrator  or  executor  cannot  be  garn 

'  Hoyt  ^.  Christie,   51  Vt.  48;  Bur-  man,   9  Vt.   320;  Hartle  v.    Long,  r» 

leson  V.  Milan,  56  Miss.  399;  Fitcliett  Pa.  St.  491;  Threshing  Machine  Co. 

V.  Dolbee,  3    Harrington,   (Del.)  267;  v.   Miracle,   54  Wis.  295;    Hicks  v. 

Stratton  «.  Ham,  8  Ind.  81;  Piper  «.  Chapman,  10  Allen,  463;  Bartell  v. 

Piper,  2N.  H.  439;  Cady  a   Comey,  Bauman,  12  111.  App.  450. 

10  Met.    (Mass.)  459;  Hoar  v.   Mar-  2  s,-uytii  «.  Anderson,   31    Ohio  St. 

shall,  2  Gray,  251 ;  Wheeler  «.  Bowen,  144;  Nickerson -y.  Chase,    122   Mass. 

20  Pick.  563;  Holbrook  «.  Waters,  19  296;  Force -y.  Brown,  82  N.   J.  Eq. 

Id.  354;  Woodward  «.  Woodward,  4  118. 

Halst.  115;  Terry  v.  Lindsey,  3  Stew.  ^  Allison  v.  Wilson's  Executors,  13 

«fe  Port.  317;    Holman  v.   Fisher,   49  Serg.  &  Rawle,  330. 

Miss.  472;  Cummings  v.   Garvin,  65  *  Smyth  ■«.  Anderson,   31    Ohio  St. 

Me.  301 ;  Adams  v.  IBarrett,  2  N.  H.  144. 

374;  Richards  «.  Griggs,  16  Mo.  416;  ^Threshing   Machine   Co.   v.  Mir- 

Cin-ling«.  Hyde,  10  Mo.   374;  Raefle  acle,  54  Wis.  295. 

V.  Moore,  58  Ga.  94;  Parks  c.  Cush-  «  Hoag  v.  Hoag,  55  N.  H.  172. 


LEGAL    CUSTODIANS.  225 

islied  in  a  snit  against  the  estate  he  administers  is  tliat  he  is 
not  the  attorney,  agent,  factor,  trustee  or  debtor  of  such 
estate. ^ 

No  judgment  for  a  specific  sum  can  be  rendered  against  an 
executor  who  answers  as  garnishee,  in  a  suit  against  an  heir, 
that  there  will  be  a  portion  due  the  defendant  after  the  settle- 
ment of  the  succession."  What  sum  will  then  be  due  is  a 
matter  of  contingency.  Debts,  legacies  and  costs  must  first  be 
paid,  and  there  is  not  such  certainty  of  fact  that  the  executor 
holds  property  or  money  belonging  to  the  defendant  as  would 
justify  holding  the  executor  liable  as  garnishee  under  his 
answer  setting  forth  such  a  state  of  things.  The  execntor  is 
not  the  creditor  of  the  heir,  and  it  not  certain  that  he  is  the 
custodian  of  any  property  of  his. 

When  the  succession  has  been  settled,  and  the  sum  due  or  the 
property  belonging  to  the  heir  has  become  certain,  the  attach- 
ing plaintiff  might  successfully  renew  the  garnishment,  but 
the  executor  is  not  lial)le  while  it  remains  uncertain  whether 
there  will  be  anything  to  pnj  over  to  the  defendant  in  the  at- 
tachment suit.  Should  he,  feeling  confident  that  there  will  be 
something  bej'ond  the  debts  of  the  succession,  retain  in  his 
hands  enough  to  meet  the  demands  of  the  attaching  creditor,  and 
pay  over  the  balance  to  the  heirs  or  legatees  or  their  attorney, 
takiivg  a  receipt  showing  that  the  sum  withheld  is  for  the  pur- 
pose stated,  such  sum  cannot  be  considered  an  appropriation  to 
the  attaching  credit(>r.  3  The  creditor  could  not  claim  that  he 
thus  has  acquired  a  legal  right  to  it. 

After  an  estate  has  been  settled,  and  suit  has  been  brought 
by  attachment  against  one  whose  share  therein  has  been  ascer- 
tained, and  garnishment  of  the  execntor  in  his  personal  capac- 
ity has  been  inade,  the  garnishee  will  be  held  chargeable.^ 
The  administrator  will  not  be  allowed  to  hold  the  fund  in  his 
hands  in  his  official  capacity,  under  such  circumstances,  to 
shield  the  heir  from  the  payment  of  a  just  debt,  and  to  hinder 
the  attaching   creditor  from    making  his  money.     The  case  ia 

•  Conway  v.   Armington,   11  R.  I.  *  Raefle  v.  Moore,  58  Ga.  94. 

116.  *  Hoyt  V.  Christie,  51  Vt.  48. 

2  Roth  V.  Hotard,  33   La.  Ann.  280. 

15 


226  GARNISHING. 

very  different  from  tliat  -wliei-e  tlie  estate  remains  unsettled, 
del)ts  due  by  tlie  succession  unpaid,  and  legacies  not  distributed. 
In  the  latter  case,  the  executor  cannot  be  compelled,  to  pay  by 
process  of  garnishment  sued  out  even  by  the  judgment  creditor 
of  an  heir  whose  portion  still  remains  nnseparated  from  the 
mass  of  the  estate. ^  Until  there  has  been  a  settlement  of  the 
estate,  at  least  so  far  as  the  judgment  of  distribution,  the  execu- 
tor or  administrator  cannot  be  reached  by  garnishment.  ^  It  is 
not  till  the  executor  is  ready  to  pay  over  to  the  heir  that  he  is 
liable  to  garnishment  in  an  attachment  suit  against  the  heir. 
"When  ready  to  pay,  he  is  in  a  situation  similar  to  that  of  a 
sheriff  or  constable  who  has  collected  money  by  virtue  of  an 
execution  which  he  is  ordered  to  pay  to  the  plaintiff  in  execution. 
At  that  stage,  he  may  be  garnished  by  an  attaching  creditor 
whose  suit  is  against  the  person  to  whom  such  collected  funds 
are  due.  ^ 

Since  the  executor  or  administrator  is  the  proper  collector  of 
debts  due  the  estate  of  the  decedent,  as  well  as  the  proper  custo- 
dian of  the  funds  when  collected,  they  cannot  be  reached  by  a 
creditor  of  the  estate  through  the   process  of  garnishing  thfJ 

debtor.  4 

Garnishment  proceedings  cannot  be  revived  against  the 
administrator  of  a  garnishee  who  has  died  without  answering 
or  being  defaulted.  ^ 

Guardians  are  not  liable  as  garnishees  for  the  funds  or  prop- 
erty of  their  wards.  ^ 

Sec.  6.    Non-resident    Third    Possessors. 

Where  one  not  a  resident  of  the  State  in  which  the  attach- 
ment suit  is  brought,  may  be  summoned  as  a  garnishee  if  with- 

1  Deblieux  «.  Dotard,   31   La.  Ann.  ^  gi^^e's  Estate,  Messick's  Probate, 

194.      In    New   Jersey,    held    that  (Cal.)  100. 

money  in  the  hands  of  an  executor,  ^  Burleson?).  Milan,  56  Miss.  399. 

due  to  a  legatee,  constituted  an  active  *  Marvel  v.  Houston,  2  Harr.  (Del.) 

trust  exempt  by  statute,  so   that  it  349. 

could  not  be  reached   to    satisfy   a  ^  White  v.  Ledyard,  48  ]\Iicli.  204. 

judgment    rendered    in    favor   of   a  '  Vierbeller  v.  Brutto,  6  111.  App. 

creditor    of    the    legatee.     Force  v.  95. 
Brown,  32  N.  J.  Eq.  118. 


NON-RESIDENT    THIRD    TOSSESSORS.  227 

in  the  State  so  as  to  he  suLject  to  the  process,  he  must 
true  answer  make  as  to  the  property  of  the  defendant  which  he 
liolds  within  the  State,  or  property  held  elsewhere  which  he 
lias  obligated  himself  to  deliver  to  tlie  defendant  within  the 
State,  and  as  to  debt  due  defendant  payable  within  the 
State.  lie  cannot  be  required  to  answer  touching  money  or 
goods  over  which  the  court  has  no  jurisdiction.  This  is  true, 
though  he  be  a  resident  of  the  State;  for  the  court  may  have 
jurisdiction  over  him  yet  not  over  property  situated  at  a  place 
to  which  the  jurisdiction  does  not  extend. 

Both  the  defendant  and  the  garnishee  may  be  non-residents, 
yet  if  the  latter  be  found  within  the  jurisdiction  and  served 
with  process  of  garnishment,  the  proceeding  may  hold  good  if 
lie  has  assets  of  the  defendant  wnthin  the  State.  ^ 

The  non-resident  garnishee,  when  found  within  the  State  and 
served  with  process,  becomes  personally  amenable  to  the  juris- 
diction of  the  court  issuing  the  pioiess,  and  must  answer.  If 
he  has  nothing  of  defendant's  within  the  State,  and  owes  him 
nothing  payable  within  the  State,  he  must  so  swear,  or  he  may  be 
held  contumacious  and  in  fault,  and  be  condemned  to  pay  such 
judgnient  as  may  be  rendered  if  the  interrogatories  amply  cover 
the  whole  claim.  None  but  himself  is  competent  to  present 
the  state  of  facts  by  which  he  should  be  exonerated. 

A  firm  located  and  doing  business  in  a  State,  and  having 
goods  or  credits  of  the  defendant  there,  may  be  subjected  to 
garnishment  there  through  a  resident  member  or  members, 
although  another  member,  or  even  a  majority  of  those  of  the 
firm,  may  reside  out  of  the  State,  and  not  be  found  temporarily 
in  the  State,  and  not  summoned  at  all.  A  corporation  located 
beyond  the  State  bounds,  having  assets  of  the  defendant  within 

^  Sawyer  ■».   Thompson,   4   Foster,  6  N.  H.  497;    Lawrence  t>.  Smith,  45 

510.     (See  Cronin  v.  Foster,  13  R.  I.  N.  H.  533;  Green  v.  Farmers'  &  Cit- 

196.)     Young  ^).  Ross,  11  Foster,  201;  izens'   Bank,   25   Ct.  452;    Miller  i:. 

Tingley  v.  Bateman,  10  Mass.  343;  Hooe,  2  Cr.  C.  C.  622;  Bates  v.  N.  O. 

Ray  t).   Underwood,    3    Pick.    302;  etc.  R.  R.  Co.  4  Abbott's  Pract.  R.  72, 

Hart  V.  Anthony,  15  Pick.  445 ;   Nye  Willet    v.   Eq.   Ins.   Co.   10    Abbott 

V.  Liscomb,  21  Pick.  263;   Lovejoy  v.  Pract.  R.  193.     (See  Waldron  v.  Wil- 

Albree,  33   Me.  414;   Baxter  v.  Vin-  cox,  13  R.  I.  518.) 
cent,  6  Vt.  614;  Jones  v.  Winchester, 


228  GAKNISIIING. 

the  State,  and  an  agerit  within  it  on  lohorri  jproeess  may  he 
legally  served  as  on  the  corporation,  may  be  made  a  garnishee. 

Whether  a  natural  or  an  artihcial  person,  whetlier  a  member  of 
a  firm  or  not,  whether  residing  without  the  jurisdic^tion  or  not, 
whether  having  property  or  funds  in  the  hands  of  the  defendant 
or  not,  let  the  garnishee  answer  plainly,  stating  all  the  circum- 
stances. 

One  who  is  only  temj^orarily  in  a  State  in  which  he  does 
not  reside,  cannot  be  subjected  to  garnishment,  as  a  general 
rule.  This  rule,  wherever  it  obtains,  will  warrant  his 
discharge;  and  whenever  he  is  exempt  by  law,  he  cannot 
waive  the  exemption,  because  it  is  not  with  him  a  personal  mat- 
ter, and  he  has  no  right  to  prejudice  the  defendant. ^  It  would 
be  different  with  one  who  has  a  regular  place  of  business  in  a 
State  though  his  principal  residence  were  elswhere.  A  corpo- 
ration frequently  does  business  at  the  same  time  in  several 
different  States,  and  it  is  liable  to  garnishment  in  any  one  of 
them  where  it  has  an  officer  upon  whom  the  process  may  be 
legally  served,  if  it  has  property  of  the  defendant  there.  2  If 
a  corporation  is  chartered  in  different  States,  it  has  corporate 
existence  in  each,  as  a  matter  of  course,  and  may  be  treated  iu 
each  as  a  resident.  ^  But  if  not  thus  chartered  so  as  to  be,  in 
contemplation  of  law,  a  resident  of  the  State,  it  comes  under 
the  rule  governing  natural  persons.  It  has  been  held  that  non- 
resident common  carriers  are  not  liable  to  foreign  attachment 
for  the  loss  of  a  trunk  within  the  State. * 

Non-residents  are  not  usually  liable  to  be  garnished,  ^  nor  are 
foreign  corporations;  but  should  such  a  corporation  operate  in 
a  State  other  than  its  own,  (by  permission  or  comity,^)  it  may 
become  liable  there  to  garnishment  process.'  One  who  holds 
property  under  trust  created  by  judicial  decree  of   a  court  in 

1  Rindge  v.  Green,  52  Vt.  204.  129. 

2  Commerce   Bank  v.  Iluntiugton,  ^  Squair  v.  Shea,  26  Ohio  St.  645. 
1'29  Mass.  444.                                                  *>  Liverpool  Ins.  Co.  13.  Massachus- 

3  Smith  V.  B.  C.  &  M.  Ry.  Co.  33  N.  etts,  10  Wall.  56G ;  The  State  v.  Boston 
H.  337;  Bait.  &  Ohio  R.  to.  v.  Galla-  etc.  R.  R.  Co.  25  Vt.  4;13. 

hue,  12  Gratt.  6")5.  '  Railroad  v.  PeoiJies,  31    Ohio  St. 

*  Porter  v.   Hildebrand,  14  Pa.  St.      537. 


NON-EESIDENT    THIRD    POSSESSORS.  229 

another  State,  wliicli  lias  jurisdiction  of  the  matter,  is  accounta- 
ble to  the  courts  of  that  State  only  for  the  execution  of  the 
trust,  and  the  property  so  held  cannot  be  reached,  by  a  benelici- 
ary  or  his  creditors,  in  a  different  State  where  the  trustee 
resides.  ^ 

*  Jenkins  v.  Lester,  131  Mass.  355;  Curtis  v.  Smith,  60  Barb.  9. 


230 


COKl'UIiATIOJSIS    AS    GAIJ^'ISLIEES. 


CHAPTER     YII. 


CORPORATIONS    AS    GARNISHEES. 


1.  States. 

2.  Counties,  &c. 


Cities. 

Private  Corporations. 


Sec.  1.    States. 

A  State  cannot  be  sued  by  process  of  garnishment,  witliout 
its  own  consent,  for  the  same  reason  that  it  cannot  be  sued  by 
ordinai-y  process;  nor  can  it  be  indirectly  garnished  by  making 
one  of  its  officers  the  nominal  garnishee.  Funds  in  the  liands 
of  a  State  Treasurer,  Auditor,  Comptroller,  Agent  or  disburs- 
ing officer,  belonging  to  the  S'.ate,  cannot  be  reached  by  this 
process  directed  against  any  such  officer.  And  the  rule 
embraces  the  United  States  and  the  District  of  Columbia,  and 
their  officers  and  ao;ents.i 

Though  public  funds  may  have  been  appropriated,  and  placed 
in  the  hands  of  an  officer  to  be  paid  to  those  who  are  creditors 


1  Dewey  v.  Garvey,  130  Mass.  86; 
Rodman  v.  Musselman,  13  Bush.  354; 
Buclianan  «.  Alexander,  4  How.  20; 
Derr  «.  Lubey,  1  Mac  Artliur,  187; 
Pottier  &  Stymus  Manufac.  Co.  v. 
Taylor,  3  Id.  4;  Brown  v.  Finley,  Id. 
77 ;  Averill  v.  Tucker,  2  Cr.  C.  C.  514; 
Bank  of  Tennessee  v.  Dibrell,  (State 
Comptroller,  Garnishee.)  3  Sneed, 
379 ;  Pennebaker*.  Tomlinson,  (State 
Comptroller,  Garnishee,)  1  Tenn.  Ch. 
Ill ;  Rollo  V.  Andes  Ins.  Co.  (State 
Treasurer,  Garnishee,)  23Grat.  509; 
Divine  v.  Harvie,  7  Mon.  439 ;  Wild 
V.  Ferguson,  23  La.  Ann.  752,  (the 
garnishees  in  the  latter  two  cases 
being  State  officers;)  Wilson  v.  Bank 
of  La.  55  Ga.  98.  In  the  case  of 
Buchanan  v.  Alexander,  boarding 
house  keepers  had  sued  seamen  and 
garnished  the  purser  of  the  frigate 
Constitution,  upon  which   the  sailors 


had  a  lien  for  wag'es;  but  the  U.  S. 
Supreme  Court  held  that  the  funds 
in  the  hands  of  that  officer  could  not 
be  thus  reached,  though  he  had  al- 
mitted  that  the  wages  were  due. 
"The  funds  of  the  government,"  said 
the  court,  "are  specifically  appropri- 
ated to  certain  national  objects,  and 
if  such  appropriations  may  be  di- 
verted  and  defeated  by  State  process 
or  otherwise,  the  functions  of  the 
government  may  be  suspended.  So 
long  as  money  remains  in  the  hands 
of  a  disbursing  officer,  it  is  as  much 
the  money  of  the  United  States  as  if 
it  had  not  been  drawn  from  the  treas- 
ury. *  *  We  think  the  question 
in  this  case  is  clear  of  doubt,  and  r&. 
quires  no  further  illustration."  Manf. 
Co.  V.  Taylor,  3  Mac  Arthur,  4;  Brown 
V.  Dist.  Col.  Id.  77;  Deer  c.  Luby,  1  Id. 
187. 


STATES.  231 

of  the  government,  they  belong  to  the  government  and  not  to 
the  creditors  up  to  the  moment  when  the  otlicer  pays  them  over 
to  the  hitter;  and  therefore  they  cannot  be  attached  in  the 
hands  of  the  officer  as  the  money  of  the  creditors  in  liis  posses- 
sion. Even  if  States  or  the  federal  government  were  liable  to 
be  garnished  for  what  property  they  hold  belonging  to  an 
attachment  defendant,  it  would  nut  follow  that  their  own  money, 
tliough  placed  in  the  hands  of  an  officer  for  payment,  could  be 
subjected  to  garnisliment  as  the  money  of  the  defendant  to 
whom  such  funds  are  to  be  paid.  However,  were  such  govern- 
ments garnishable,  debts  due  a  defendant  might  be  reached  by 
the  process;  for,  in  such  case,  it  is  not  essential  that  the  money 
necessary  to  pay  debt  should  already  belong  to  the  defendant. 
The  reason  why  they  cannot  be  garnished  for  debt  is  the  broad 
one  that  a  State  cannot  be  sued;  and  that  reason  is  based  upon 
public  policy,  whether  the  policy  be  intrinsically  wise  or  unwise. 
And  the  reason  extends  to  the  garnishment  of  officers. 

The  reason  has  been  extended,  in  the  majority  of  the  States, 
to  public  corporations  of  a  subordinate  character:  such  as 
counties,  townships,  city  corporations  and  school  districts. 
However,  where  the  opposite  theory  prevails,  and  also  where 
the  question  is  an  open  one,  as  in  new  States  when  counties, 
cities,  school  districts,  etc.,  are  first  formed,  there  may  be  strong 
argument  drawn  from  policy,  in  favor  of  the  garnishment  of 
such  corporations.  The  acknowledged  dutj"-  of  every  debtor 
to  pay  his  debts;  the  obligation  upon  government  to  facilitate 
the  performance  of  such  duty;  the  injustice  of  allowing  a  debtor 
to  defeat  a  creditor  by  putting  funds  or  property  into  the  hands 
of  a  public  corporation  to  keep  them  out  of  the  reach  of  the 
courts;  the  almost  equal  injustice  of  permitting  such  corpora- 
tion to  hold  a  debtor's  money  or  property  from  the  operation  of 
a  court's  writ,  though  not  put  designedly  in  such  position  to 
defeat  the  creditor,  ought  to  have  weight  in  considering  the  ques- 
tion of  policy. 

The  arguments  generally  employed,  that  such  corporations 
and  their  officers  might  be  hindered  in  the  discharge  of  their 
public  duties  if  liable  to  be  called  into  the  quarrels  of  litigants 
to  answer  what  property  or  funds  they  hold  belonging  to  an 


232  COKPOKATIONS    AS    GAENISIIEES. 

attaclimont  defendant,  and  tliat  they  cannot  always  l\now  wliat 
is  due  such  defendant  until  accounts  have  been  adjusted,  may 
be  met  by  the  answer  that  when  it  is  ay)j>arent  tliat  a  stated  sum 
is  due  him,  or  that  a  distinct  article  of  prupcu-ty  belony^s  tohim, 
it  is  very  easy  for  a  public  corporation,  or  its  proper  officer,  to 
say  so — as  easy  as  it  is  for  a  private  corporation,  or  its  proper 
officer,  to  say  so,  under  similar  circumstances — (not  only  easy, 
but  a  duty  when  the  law  requires  it,  and  therefore  no  hindrance 
of  official  duty;)  and,  in  ant^M'er  to  the  other  objection — that 
they  cannot  always  know  what  is  due  the  defendant  till  his 
accounts  have  been  settled,  it  seems  sufficient  to  say  that  a 
response  to  an  interrogatory  to  that  effect  would  work  the  dis- 
charge of  the  garnishee.  Unless  traversed,  an  answer  by  a 
private  person  that  his  accounts  with  the  defendant  are  unliq- 
uidated and  that  he  does  not  know  whether  he  is  indebted  or  not, 
would  result  in  his  discharge  unless  refuted  under  traverse.  If 
it  be  said  that  public  corporations  and  their  disbursing  officers 
ought  not  to  be  subjected  to  the  litigation  consequent  upon  a 
traverse  of  their  answers,  the  ready  reply  is  that  the  argument 
favors  statutory  exemption  from  traverse  rather  than  from 
garnishment.  There  are  good  reasons  for  a  provision  prohibit- 
ing further  procedure  against  a  public  corporation,  cited  as 
garnishee  in  an  attachment  suit,  after  such  an  answer  as  above 
suggested;  for  if  every  creditor  should  have  it  in  his  power  to 
derange  the  ordinary  official  routine  of  business  by  making 
accounting  officers  liquidate  accounts  out  of  due  time,  much  con- 
fusion and  public  injury  might  result.  With  such  a  provision, 
almost  every  objection  to  the  garnishment  of  subordinate  public 
corjDorations  would  l)e  swept  awaj-.  The  public  interests  would 
be  subserved  by  the  extension  of  the  creditor's  means  of  col- 
lecting his  just  dues  and  the  cause  of  justice  would  be  pro- 
moted. 

Where  subordinate  public  corporations  may  sue  and  be  sued 
in  direct  actions  the  argument  drawn  from  the  inviolability  of 
the  State  does  not  apply  to  them;  and,  considering  garnishment 
as  a  suit,  they  ought  not  be  exempt  from  it  on  tiiis  ground. 
Besides,  State  inviolability  is  not  so  indisputably  commendable 
that  it  should  be  extended    to  minor  organizations  which  per- 


COUNTIES,    ETC.  233 

form  some  of  tlie  functions  of  government.  The  United  States 
government  suffers  itself  to  be  sued,  upon  contracts  express  or 
implied,  in  the  Court  of  Chilms,  If  all  governments  would 
allow  the  courts  to  settle  claims  preferred  against  them,  is  it 
likely  that  less  justice  would  be  done  than  now  when  such 
judicial  iunctions  are  confined  "to  executive  officers  who  act  and 
think  through  their  clerks? 

See.  2.    Counties,  &c. 

Under  the  policy  followed  by  most  of  the  States,  neither 
counties,  nor  their  officers,  are  chargeable  by  garnishment,  upon 
general  principles;  they  may  be  rendered  amenable  by  statute, 
but  are  not  otherwise  liable.  If  a  county  officer  could  be  cited 
into  co'n-t  to  answer  as  to  what  public  funds  he  holds,  in  a  suit 
between  private  litigants,  he  might  be  hindered  in  the  settle- 
ment of  his  accounts  with  the  county,  to  the  injury  of  the  pub- 
lic interests.  For  this  reason,  as  M-ell  as  fur  one  founded  ujDon 
a  statute,  it  was  held  that  a  county  treasurer  was  not  charo-eable 
as  garnishee  or  trustee,  though  be  had  answered  to  an  interro- 
gatory that  he  had,  in  his  official  capacity,  a  stated  sum  of 
money  due  to  the  defendant  for  services  as  a  juror  which  he  M^as 
legally  obliged  to  pay  to  the  defendant.  ^  A  county  officer's 
authority  and  duty  are  governed  by  law,  and  he  cannot  be  made 
to  diverge  from  his  rightful  official  course  of  action  by  court 
orders  at  the  instigation  of  litigants,  in  the  absence  of  statutory 
authorization,  and  to  the  detriment  of  the  public  welfare,  any 
more  than  a  State  officer  could  thus  be  turned  from  the  line  of 
his  public  duty.  3 

A  county  is  deemed  a  municipal  corporation,  and  its  officers 
held  exempt  from  garnishment  an  account  of  public  property  or 

1  Chealy  v.  Brewer,  (Seaver,  Trus-  387;  Webb  v.  McCauley,  4  Bush,  8; 
tee,)  7  Mass.  3')9;  Williams  v.  Board-  Ross  v.  Clarke,  1  Dall.  854;  Spalding 
man,  9  Allen,  570.  v.    Imlay,    1    Root,   551;    Stanton    v. 

2  Ward '«.  County  of  Hartford,  13  Holmes,  4  Day,  87,  96;  Benton  ®. 
"Ct.  404;    Bray  v.  Walliiigford,  20  Id.       Dutcher,3Id.  346;  Winchell  r.  Allen, 

410;  McDougal  v.  Hennepin  Co.,  4  1  Ct.  3;>5;  Stillman  -v.  Isham,  11  Ct. 
Minn.  lo4;  Bulkley  v.  Eckert,  3  Pa.  134;  Wallace  v.  Lawyer,  54  lud.  501. 
St.  3()8;    Booue  Co.  «.  Keck,  31  Ark. 


234  CORPOEATIONS    AS    GARNISHEES. 

money  in  tlieir  hands.  Even  if  the  county  were  garnishable, 
it  is  lield  tliat  the  process  would  not  reach  an  undelivered  county 
order  in  favor  of  the  debtor,  while  yet  in  the  hands  of  the 
county  clerk;  and  that  the  delivery  of  the. order  to  the  sheriff, 
upon  service  of  the  process  upon  the  clerk,  does  not  bind  the 
county  nor  subject  it  to  the  garnishment. i  The  clerk,  being 
the  agent  of  the  board  of  supervisors,  holding  for  it,  has  no 
custody  independent  of  the  board;  and  the  garnishment  is 
virtually  against  the  county,  which,  as  a  municipal  corporation, 
cannot  be  thus  reached. ^  A  county  cannot  be  directly  sued,^ 
as  a  general  rule;  but  when  it  may  be  sued,  and  judgment 
obtained  against  it,  its  debtor  may  be  garnished  in  execution. * 

A  quasi  corporation  is  liable  to  have  the  usual  legal  remedies 
applied  to  it,  if  the  law  imposes  upon  it  such  duties  and  grants 
such  privileges  as  require  such  remedies  on  the  part  of  others 
in  the  enforcement  of  their  rights.  It  is  a  proper  inference  that 
a  statute  confers  such  remedies  when  it  provides  that  such  a 
corporation  may  sue  and  be  sued,  though  none  of  the  conserva- 
tive w^rits  or  any  particular  form  of  remedy  may  be  expressed.  ^ 
But  a  county  is  not  such  a  corporation.  It  is  more  analagous 
to  the  State  government  than  to  public  bodies  merely  created  by 
statute  for  designated  purposes.  A  statute  authorizing  a  county 
to  make  an  appearance  when  sued  was  construed  not  to  imply 
that  the  county  might  be  sued.« 

It  would  seem  that  when  a  municipal  corporation  makes  a 
contract,  it  ought  to  be  liable  to  suit  or  garnishment  precisely 
as  a  natural  person.  In  Massachusetts,  a  county  may  be  gar- 
nished for  a  sum  due  by  contract.  Although  a  juror's  fees 
cannot  be  attached  in  the  hands  of  the  county  by  such  process 

1  Merrell  v.  Campbell,  (County  County  of  Litchfield,  Id.  155;  Rus- 
Clerk,)  4t)  Wis.  5o5.  sell  v.  Men  of  Devon,  2  Term   Rep. 

2  Id. ;  Burnliam  v.  Fond  du  Lac,  15      607. 

Wis.  19:} ;  Buffhiim  v.  Racine,  2G  Wis.  *  George  v.  Ralls   Co.,  3   McCrary 

449;  Hill   v.  Lacrosse   &  Mill.  R.  R.  C.  C.  181. 

Co.  14  Wis.  291.  5  Ward   ?;.  County   of  Hartford,  12 

3  Sheldon  v.  Litchfield  County,  1  Ct.  404,  407;  McLoud  v.  Seiby,  10  Ct. 
Root,  158;  Lyon  v.  Fairfield  County,  390;  Tildeu  v.  Metcalf,  2  Day,  209. 

2  Id.  80;  Staphouse®.  County  of  New  **  Ward  ■«.  County  of  Hartford,  12 

Haven,    1    Root,    126;     Hawley    v.      Ct.  408. 


COUNTIES,    ETC,  233 

in  that  State,*  the  Supreme  Court  say  that,  in  cases  of  contract, 
"there  has  never  heen  a  douht  that  cities  and  towns  are  liable 
to  be  summoned  as  trustees;  and  we  find  nothing  in  the 
statutes  upon  this  subject  that  places  counties  upon  a  different 
footing  in  this  respect  from  cities  and  towns."^ 

Wluit  has  been  said  about  the  non-liability  of  a  county  and 
its  officers  is  almost  as  broadly  applicable  to  a  townsliip.^ 
Where  the  rule  of  non-liability  prevails,  wliether  by  statute  or 
by  settled  practice  based  upon  the  princi})les  above  mentioned 
with  respect  to  counties,  and  applicable  alike  to  cities,  it  is  not 
confined  to  such  cases  as  would  embarrass  officers  in  the  dis- 
charge of  their  duty,  but  is  extended  to  all  cases.  The  ques- 
tion, when  such  garnishment  is  attempted,  is  not  whether  the 
process  interferes  with  the  political,  civil  or  corporate  duties 
of  the  officer,  but  whether  the  statute,  or  the  policy  of  the  law, 
allows  the  garnishment  of  such  a  corporation  at  all.^  A  cor- 
poration may  waive  objection  to  garnishment,  even  where  there 
is  no  express  statute  authorization  for  the  pi'ocess  against  such 
a  body.  5  Waiver,  however,  ought  not  be  permitted  without 
the  consent  of  the  attachment  debtor.  ^ 

Distinction  has  been  drawn,  however,  between  a  public  officer 
of  such  a  corporation  and  a  mere  agent  appointed  by  a  town  to 
distribute  money  among  its  inhabitants;  and  while  the  former 
are  not  chai-geable  under  trustee  process,  the  latter  was  held  to 
be  so  when  the  corporation  itself  was  liable.''  But,  if  the  cor- 
poration is  exempt,  its  agent  cannot  be  garnished  though  he  be 
a  pi'ivate  citizen. s 

The  rule  that  2")ublic  corporations,   deriving  their  authority 

'  They  can  be  in  New  Hampshire :  157.     See  Wallver  v.  Cook,  129  Mass. 

Wurdwell  v.  Jones,  58  N.  H.  805.  577. 

» Adams  v.  Tyler,  121  Mass.  380:  *Jenks  v.  Osceola  Township,  45 

the  case  of  Williams  v.  Boardman,  9  Iowa,  555. 

Allen,  570,  distinguished.     And  the  ^  Clapp    v.   Walker    &    Davis,   25 

distinction    may     be     extended     to  Iowa,  315;  Los  Animas  Co.  Commis- 

Chealy  v.  Bi-ewer,  7  Mass.  259.  sioners  v.  Bond,  3  Col.  441. 

3  Jenks  V.   Osceola  Township,  45  ''School  Dist.B.  Gage,  39  Mich.  484; 

Iowa,  554;  Spencers.  School  District  Johnson  v.  Dexter,  38  Mich.  695. 

(No.    17,)  11    R.  I.  537 ;  Bradley    v.  '  Wendell  v.  Pierce  &  Trustees,  13 

Town  of  Richmond,  6  Vt.  121 ;   Con-  N.  H.  502. 

tra:  Hibbard  v.  Clark,  56  N.  H.  155,  »  Merrell  v.  Campbell,  49  AVis.  535. 


236  CORPORATIONS    AS    GARNISHEES. 

from  the  law,  for  the  receiving  and  dishnrsing  of  piiLlic  funds, 
are  not  chargeable  as  garnishees,  is  applicable  to  school  districts, 
their  commissioners,  treasurers  and  other  officers.^  School  dis- 
tricts are  considered  as  municipal  corporations^  and  thus 
brought  under  the  rule  of  non-liabilitj.3  They  are  public  cor- 
porations.* Their  officers  are  to  be  treated  as  public  ofticers, 
and  the  money  in  the  hands  of  such  officers  to  be  deemed  in 
custodia  legis  and  therefore  not  subject  to  garnishment. 5 

Sec.  3.    Cities.  v 

Though  there  is  not  uniformity  in  the  practice,  in  the  several 
States,  with  respect  to  the  garnishment  of  incorporated  cities 
and  towns,  and  their  officers,  yet  the  same  reasoning  may  be 
urged  against  their  garnishment  as  against  counties  and  other 
public  corporations.  City  governments  control  large  popula- 
tions and  exercise  very  important  functions.  Persons  subject 
to  municipal  authority  feel  its  operation  as  sensibly  as  they  do 
that  of  the  State  or  federal  government.  As  tax  collecting  and 
tax  distributing  powers,  cities  bear  upon  the  interests  of  all 
their  citizens.  They  exercise,  to  a  great  degree,  the  authority 
of  the  State  itself,  under  its  surveillance.  Almost  every  argu- 
ment against  the  policy  of  a  State's  allowing  itself  to  be  sum- 
moned directly,  or  indirectly  through  its  officers,  to  appear  in 
the  litigation  of  others  in  which  it  has  no  interest,  will  apply 
to  the  case  of  a  municipal  corporation. 

1  School  District  «.  Gage,  39  Mich.  cited  being  to  the  effect  that  ateach- 

484;  Spencer  «.  School  District  No.  er's  salary  cannot  be   the  subject  of 

17,  11  R.  I.  537;  Bivens  v.   Harper,  garnishment.     Ross  v.  Allen,  10  N. 

59  111.  21;  Millison  v.  Fisk,  43   Id.  H.  96,  supports  the  same  proposition. 

112;  Clark  v.  Mobile  School  Commis-  See  Johnson  «.  Pace,  78  111.  143. 

sioners,  36  Ala.  621;  Tracy®.  Horn-  2  g^jjool  District,  etc.   v.   Gage,  39 

buckle,  8  Bush,  336;  Bulkly  v.  Eck-  Mich.  484;  Seely  v.  Board  of  Educa- 

ert,  3  Pa.  St.  368;  Fourth  School  Dis-  tion,  Id.  486:  both  upon  construction 

trict  in  Ruraford  v.  Wood,  13  Mass.  of  statute. 

193-8-9;  Thayer  v.  Tyler,   5  Allen,  ^  Id. 

95;    Colby  v.   Coates,  6   Cush.    559;  *  Trustees  of  Schools  ».  Tatman,  13 

Hightower  ■«.   Slaton,    54    Ga.   108;  111.27. 

JMcLellan  v.  Young,  Id.  399,  and  21  ^  Millison  «.  Fisk,  43  111.  112,  re- 
Am.  Rep.  276;  Hadley  v.  Peabody,  affirmed  in  Bivens  et  al.  School  Di- 
13  Gray,   200:    the   last   three  cases  rectors  v.  Harper,  59  111.  21. 


CITIES. 


237 


It  is  time,  a  State  offers  some  reasons  for  not  being 
directly  sued  without  its  consent,  which  a  city  cannot  urge; 
but  the  reason  against  being  garnished,  which  is  usually 
advanced,  that  it  would  hinder  otttcers  in  the  discharge  of  their 
duties  and  work  to  the  injury  of  the  public  interest  is  equally 
applicable  to  cities  and  their  servants.  That  creditors  should 
be  allowed  the  facility  which  garnishment  gives  for  the  collec- 
tion of  their  dues,  is  less  important  than  that  public  duties  be 
perfectly  performed.  Officers  might  be  harrassed  daily,  and 
drawn  from  their  posts  of  duty  to  the  courts,  to  appear  in  suits 
against  the  many  employees  which  a  city  must  owe  from  time 
to  time  if  they  were  chargeable  as  garnishees  for  public  funds 
in  their  hands.  A  city  is  a  public  corporation,  existing  for  the 
public  good.  Upon  these  and  other  considerations  it  has  been 
held  that  a  city  is  not  amenable  to  garnishment,  in  the  absence 
of  statutory  provision  creating  liability,  i  And  for  the  same 
reasons,  it  is  held  that  money  in  the  official  possession  of  a 
municipal  officer  is  not  garnishable,^ 


'  Merrell  v.  Campbell,  49  Wis.  535, 
(in  a  case  against  a  county;)  People 
t).  Mayor,  etc.,  2  Neb.  16G;  Merwin 
V.  City  of  Chicago,  15  111.  133;  City 
of  Chicago  v.  Halsey,  25  111.  596; 
Jenks  V.  Osceola  Township,  45  Iowa, 
554;  Fortune  v.  St.  Louis,  28  Mo. 
239 ;  Hebel  v.  Amazon  Ins.  Co.  33 
Mich.  407;  Hawthorne  v.  St.  Louis, 
11  Mo.  59.  (See  Pendleton  v.  St. 
Louis,  49  Mo.  505;)  Edgerton  v. 
Third  Municipality  of  New  Orleans, 
1  La.  Ann.  435;  Wallace  v.  Lawyer, 
54  Ind.  501 ;  Parsons  v.  McGavock,  2 
Tenn.  Ch.  581;  Moore  v.  Mayor  of 
Chattanooga,  8  Heisk.  850;  Memphis 
V.  Laski,  9  Id.  511;  Bank  v.  Dibrell, 
3  Sneed,  383;  Baltimore  v.  Root,  8 
Md.  95 ;  McDougall  v.  Board,  etc.,  4 
Minn.  184;  Callughan  v.  Pocasset 
Manufac.  Co.  119  Mass.  173;  Todd  v. 
Birdsall,  1  Cow.  260;  Burnham  v. 
Fond  du  Lac,  15  Wis.  193,  reaffirmed 
in    Buffham  v.   Racine,  26  Id.  449; 


Wilson  V.  Lewis,  10  R.  I.  285;  Adams 
V.  Barrett,  2  N.  H.  375;  Beckwith  v. 
Baxter  and  Trustee,  3  Id.  67 ;  Brad- 
ley ».  Richmond,  6  Vt.  121;  Divine 
V.  Harvie,  7  T.  B.  Mon.  440;  City  of 
Erie  v.  Knapp,  29  Pa.  St.  173;  Greer 
V.  Rowley,  1  Pittsburgh,  1 ;  McClellan 
V.  Young,  54  Ga.  399 ;  Maryland  v. 
Bait.  &  O.  R.  R.,  12  Gill  &  J.  399; 
Mobile  V.  Rowland,  26  Ala.  498; 
President  of  Union  Turnpike  Co.  v. 
Jenkins,  2  Mass.  37;  Pittstown  v. 
Plattsburgh,  18  Johns.  407,  418. 

2  Wallace  v.  Lawyer,  54  Ind.  501 ; 
Triebel  v.  Colburn,  64  111.  376 ;  Had- 
ley  V.  Peabody,  13  Gray,  200;  Ward 
V.  County  of  Hartford,  12  Ct.  404; 
Erie  v.  Knapp,  29  Pa.  St.  173;  Moore 
V.  Mayor  of  Chattanooga,  8  Heisk. 
850;  ^Memphis  v.  Laski,  9  Id.  511; 
Edmuudson  v.  De  Kalb  Co.  51  Ala. 
103.  (See  Rodman  v.  Musselraan,  13 
Bush,  354;  Lightner  v.  Steinagal,  33 
111.  510;  Millison  v.  Fisk,  43  111.  113. 


238  COKPORATIONS    AS    GARNISHEES. 

A  creditor  of  a  city  officer,  in  an  attacliincnt  suit  ngainst 
sncli  officer,  cannot  make  the  comptroller  of  the  mnnicipal  cor- 
poration a  gai'nishee,  1  The  fnnds  the  comptroller  holds  are 
the  city's  till  paid  over,  and  not  held  by  him  in  the  capacity  of 
a  debtor  or  agent  of  the  man  to  whom  they  are  due.  The  gen- 
eral rule  is  that  salaries  of  municipal  officers  are  not  garnish- 
able,  and  it  has  been  extended  to  the  wages  of  employees  ;2  and 
where  this  prevails,  a  city,  though  it  may  be  there  generally 
garnishable,  would  not  be,  in  a  suit  for  such  dues. 

When  summoned,  a  city  held  money  of  the  defendant  under 
special  agreement  that  it  should  be  applied  to  the  payment  of 
his"  taxes.  Under  such  circumstances,  the  money  was  not  liable 
to  garnishment.  But  when  the  city  answered,  the  money,  still 
in  the  citv-o-arnisliee's  hands,  was  no  lono-er  held  for  the  taxes 
— they  having  been  paid  meanwhile.  On  the  principle  that  the 
validity  of  a  garnishment  must  be  determined  by  the  state  of 
things  existing  at  the  time  of  the  summons,  the  city  was  held 
not  liable.  3 

It  is  not  everywhere  settled,  however,  that  municipal  corpo- 
rations, directly  or  through  their  officers,  are  free  from  liability 
to  garnishment.  Courts,  in  enforcing  positive  statutes,  con- 
struing doubtful  ones,  and  sometimes  in  applying  general  prin- 
ciples, have  held  such  bodies  and  their  representatives  charge- 
able as  garnishees.^  Under  a  statute  wdiich  subjected  "  any 
person,  body  politic  or  corporate  "  to  process  for  the  recovery 

JWaldman  v.  O'Donnell,  57  How.  Bray    v.    lYallingford,    20    Ct.   41(5; 

Pr.  215.  Wales  ».  City  of  Mu-catine,  4   Iowa, 

^  Keyser  ».  Rice,  47  Md.  203.  302;    Speeds.  Brown,  10    B.  Mon. 

3  O'Brien  «.  Collins,  124  Mass.  98.  108;  Pendleton   v.   Perkins,   49  Mo. 

On  the  other  hand,  a  tax  payer  can-  565;  Wilson  ■».  Lewis,  10  R.   I.   285; 

not  be  garnished   by  the  creditor  of  Rodman  v.  Musselman,  12  Bush,  354; 

a     municipal    corporation    for    the  (See  Heibner  v.  Chave,  5   Barr,   15.) 

amount  of  his  taxes.     This  was  held  (See  Pendleton  v.  Perkins  &  City  of 

to  be  the  rule,  even   when   the   tax-  St.  Louis,  49  Mo.  505,  and  Neuer  •y. 

payer   had   given  his  note  and  the  O'Fallon,   18   Mo.    277.)     In  Massa- 

city  had  obtained  judgment  thereon.  chusetts,  "there   has  never    been   a 

Underbill  v.  Calhoun,  63    Ala.  216.  doubt    that    cities    and    towns    aro 

But  see  Smooth.  Hart,  Id.  69.  chargeable  as  trustees"    in   cases  of 

*  Mayor,  etc.  v.  Horton,  38  N.  J.  L.  contract:  Adams  v.  Tyler,  121   Mass. 

88;  Whidden  v.  Drake,  5  N.  H.   13;  380. 


PKIVATE    COKrOKATIONS.  239 

of  salaries  of  its  officers,  at  the  suit  of  creditors,  it  was  held  that 
cities  are  included, ^  but  the  general  rule  is  that  public  corpora- 
tions ai'e  not  garnishable,  though  the  statute  should  expressly 
authorize  the  process  against  "all  persons  and  corporations.'''' 
The  opinion  prevails  that  nnmicipal  corporations  must  be 
expressly  mentioned  if  they  al-e  to  be  made  garnishable  by 
statute;  and  that  view  will  be  found  generally  held  by  the 
courts  except  in  the  States  where  it  is  the  settled  practice  to 
hold  such  bodies  garnishable. 

In  the  interpretation  of  statutes  authorizing  the  garnishment 
oi  persons  witiiout  naming  corporations,  it  has  been  argued 
that  the  latter  are  not  included,  and  that  this  appears  from'  the 
requirement  that  the  answers  must  be  under  oath;  and,  for  this 
reason,  a  town  v/as  held  not  amenable  to  garnishment. ^  There 
would  seem  to  be  no  dithculty  about  the  affidavit,  if  artificial 
persons  are  intended  under  the  general  term,  since  corporations 
always  act  and  speak  and  swear  by  their  officers. ^  The  reason- 
ing with  respect  to  the  oath  that  would  exclude  public,  would 
also  exclude  private  corporations  from  the  intendment  of  the 
statute. 

"When  municipal  corporations  are  garnishable,  they  are  sub- 
ject to  the  rules  governing  private  garnishees,  but  there  are 
commonly  statutory  exceptions  in  favor  of  officers  and  employ- 
ees, policemen,  agents,  etc.*  They  are  not  liable  to  the  process 
on  a  claim  which  could  not  be  made  a  cause  of  action  airainst 
them  in  a  direct  suit  by  their  immediate  creditor. 

Sec.  4.    Private  Corporations. 

Artificial  persons  of  private  character  are  subject  to  garnish- 
ment precisely  as    natural    persons.  ^       A    corporation    speaks 

1  City  of  Newark  v.  Funk,  15  Ohio  S.  &  R  173;  CaHabaii  v.  Hallowell, 
St.  462.  2  Bay,  8;  South  Carolina  R.  R.  Co.  v. 

2  Bradley  v.  Town  of  Richmond,  6  McDonald,  5  Ga.  531 ;  Branch  Bank 
Vt.  121;  Union  Turnpike  Road  v.  r.  Poe,  1  Ala.  396;  Cook  ».  Walthall, 
Jenkins,  2  Mass.  37.  20  Ala.  334. 

3  Oliver  v.  C.  &  A.  R.  R.  Co.  17  111.  *  Keyser  v.  Rice,  47  Md.  203. 

587;  Head   v.    Merrill,  34  Me.  586;  s  jjnox  «.  Protection  Ins.  Co.  9  Ct. 

Bushel  «.  Commonwealth  Ins.  Co.  13      430. 


210  COEPOEATIONS    AS    GARNISHEES. 

tlirongli  its  president  or  other  representative  officer,  and  may 
thus  answer  interrogatories  under  oath  as  well  as  any  other 
third  person  holding  assets  of  the  defendant  or  indebted  to  him. 
Liable  to  direct  suit,  it  is  liable  to  the  side  action  by  which  it 
is  summoned  into  court  to  declare  its  position,  and  it  may  be 
ordered  to  pay  over  what  it  has,  just  as  any  other  garnishee 
may  be.^  The  summons  must  be  directed  to,  and  served  upon, 
the  corporation  itself;  npon  such  officer  as  it  puts  forward  t(j 
represent  it  as  a  body;  not  upon  any  officer  thereof,  since  the 
summons  might  thus  be  binding  only  on  the  subordinate  and 
not  legally  bring  the  corporation  itself  into  court. ^ 

Although  in  an  attachment  snit  against  a  private  corporation 
the  treasurer  of  that  corporation  cannot  be  made  a  garnishee 
and  the  funds  he  officially  holds  attached  in  his  hands, ^  yet  in 
a  garnishment  proceeding  against  such  body  the  sworn  answer 
may  be  by  the  treasurer  if  autliorized  to  represent  it.^ 

Only  what  a  bank  holds  of  the  defendant's  property,  or  what 
it  owes  him,  can  be  reached  by  garnishment.  It  does  not  hold 
the  stock  of  a  stockholder  of  its  corporation  in  such  a  sense  as 
to  be  liable  to  garnishment  therefor.  The  same  is  true  of  any 
other  corporation  with  regard  to  any  part  of  its  own  stock 
owned  by  the  defendant.  The  stock  may  be  attached  as  the 
property  of  the  defendant,  but  it  cannot  be  reached  by  garnish- 
ment served  upon  the  corporation  itself  through  its  official 
head.  ^ 

A  corporation  cannot  be  successfully  garnished  upon  the 
showing  that  the  attachment  defendant  had  done  work  for  it, 
and  that  its  books  indicate  a  balance  in  his  favor;  there  should 

»Balt.  &  Ohio  R.  R  Co.  v.  Galla-  486;  Harris  v.  Somerset  &   Ken.  R 

hue,  12  Grattan,  655;  Boyd  v.  Chesa-  R.  Co.  47  Me.  298;  Greer  v.  Rowley, 

peake  &  Ohio  Canal  Co.  17  Md.  195;  1   Pittsburgh,    1;    Davidson  v.  Dono- 

Taylor  v.   Burlington   &  Mo.   R.  R  van,  4  Cr.  C.  C.  578. 

Co.  5  Iowa,  114;  Walesa.  Muscatine,  ^  Mueth  v.  Schardin,   4   Mo.  App. 

4  Iowa,  302;  Knox  v.  Protection  Ins.  403. 

Co.  9  Conn.   480;    Trenton  Banking  *  Chicago  Rock   Is.   R.   R.    Co.  i\ 

Co.  V.  Haverstick,  6  Halsted,  171.  Mason,  11  111.  App.  525. 

2  Wilder  v.  Shea,   13    Bush,   128;  ^  Rqss  ?;.  Ross,  25  Ga.    297;  Plant- 
Kennedy  V.  H.   L.  &   S.   Society,  38  ers  &  Merchants  Bank  v.  Leavens,  4 
Cal.    151;  Claflin  v.    Iowa   City,   12  Ala.  753. 
Towa,  284;  Clark  v.  Chapman,  45  Ga. 


PRIVATE    COErORATIONS.  241 

be  tlie  further  sliowing  that  such  bolance  is  due  and  payable  to 
the  defendant.  1  It  should  be  made  to  appear  tliat  the  corpora- 
tion has  a  definite  sum  of  money  in  hand  belonginor  to  the 
defendant  which  it  cannot  justly  retain,  which  is  the  rule  when 
a  natural  person  is  subjected  to  garnishment, 2  or  that  it  is 
unconditionally  indebted  to  liim,  or  holds  property  of  his, 
according  to  tlie  general  rule. 

A  bank  receiving  funds  belonging  to  a  firm  knowm  to  be 
insolvent,  in  payment  of  a  note  due  by  one  member  of  the  firm, 
may  be  garnished  as  the  holder  of  funds  of  the  firm,  in  an 
attachment  suit  against  such  insolvent  partnership. ^  Knowl- 
edge, on  the  part  of  the  bank,  that  a  sum  paid  to  itAvas  not  the 
money  of  its  debtor,  would  make  it  a  party  to  the  fraud  tlius 
perpetrated  upon  the  creditors  of  the  insolvent  firm.  The  bank 
would  thus  become  the  unlawful  holder  of  that  which  was  the 
common  pledge  of  the  creditors  before  the  attachment,  and  of 
that  upon  which  the  attachment  creditor  had  a  hypothetical  lien 
after  the  attachment  and  garnishment. 

The  indebtedness  of  an  insurance  company  npon  a  policy 
may  be  reached  by  garnishment.'*  But  if  there  has  been  a  loss 
by  fire  and,  by  the  terms  of  the  policy,  the  company  has  the 
right  to  rebiTild,  it  would  not  be  liable  as  garnishee  in  a  suit 
against  the  insured  by  his  creditor. ^  It  is  not  liable  in  a  suit 
against  the  husband  when  the  insurance  is  due  to  his  wife.^ 

The  agents  of  an  insurance  company  cannot  be  garnished,  for 

1  Hewitt  V.  Wagar  Lumber  Co.  38  held  as  garnishee  in  Illinois.    Roche 

INIich.  701.  V.  R.  I.  Ins.  Assoc,  2   111.   App.  3G0. 

'  De  Graff  v.  Thompson,   24  Miss.  It  is  considered  no  defense,  in  Wis- 

452.  consin,  against  the  garnishment  pro- 

^  Johnsdn  v.  Hersey,  70  Me.  74.  cess,  that   the   garnishee's   iudebted- 

*  The   Rhode    Island    Ins.   Assoc.  ness  to  the  defendant  is    payable  in 

liad  an  agencj^  in  Illinois  and  another  another   State  where    the  defendant 

in  Wisconsin,  and  was  garnished  in  resides,   if  the    court    has    obtained 

both  States  by  the   same  attachment  jurisdiction     over     the     defendant, 

creditor  to  reach   a  policy  debt  due  Commercial  Bank  v.  Chicago,    M.  & 

the  defendant  in  the   suits.    The  in-  St.  P.  R.  R.  Co.,  45  Wis.  173. 

debtedness  was  on  a  policy  of  insur-  ^  Godfrey  v.  Macomber,  128   Mass. 

ance  upon  the   defendant's  property  188;  Thorp  ».  Preston,  42  Mich.  511. 

in  Wisconsin  and  was  there  exempt  ^  Houghton  v.  Lee,  50  Cal.  101. 
by  statute;    still   the    company  was 

16 


242  COKPOEATIONS    AS    OAKNISHEES. 

debts  due  l)j  tlie  company  to  tlic  attaching  creditor,  unless  tliey 
have  property  or  funds  of  the  company  in  hand.^ 

It  was  held  in  Yirginia  that  an  insurance  company,  incor- 
porated under  United  States  laws,  though  complying  witli  the 
law  of  that  State  in  relation  to  foreign  insurance  companies 
doing  business  therein,  (Va.  Code,  1873,  Ch.  3G,  §  19,)  is  sub- 
ject to  foreign  attachment. ^ 

A  common  carrier  may  be  lial)le  as  a  garnishee,  if  he  have 
funds  of  defendant  in  hand.  lie  has  been  held  liable,  though 
the  funds  were  payable  in  another  State. ^  If  he  has  pro])erty 
undergoing  transportation,  and  it  is  not  witliin  the  county 
where  the  garnishment  is  issued,  though  within  the  State,  he  is 
not  liable.'* 

The  baggage  which  a  passenger  on  a  railroad  car  is  taking 
with  him  on  a  journey,  remains  so  far  in  his  own  possession 
that  he  may  present  his  check  at  any  time  and  have  his  trunk, 
valise,  etc.,  delivered  to  him,  though  at  a  point  short  of  the 
terminus.  He  may  have  checked  through,  yet  may  have  con- 
cluded to  stop  over  at  an  intermediate  station,  and  to  have  his 
baggage  stop  with  him.  It  would  seem  therefore  that  the  bag- 
gage, though  given  to  the  railroad  company  for  transportation, 
is  still  in  the  owner's  possession.  It  is  in  much  the  same  con- 
dition as  when  given  to  an  expressman  at  the  end  of  the  jour- 
ney to  be  taken  to  a  hotel;  or  as  when  a  cai-pet-sack  is  entrusted 
to  a  boy  to  be  taken  to  the  passenger's  stopping  place  while  he 
walks  by  the  side  of  the  passenger.  No  one  M'ould  think  the 
expressman  or  the  errand  boy  subject  to  garnishment  as  the 
possessor  of  the  passenger's  property.  He  has  such  custody 
as  would  render  him  liable  for  any  injury  attributable  to 
improper  keeping.  The  express  company,  which  takes  trunks 
from  the  railroad  depot  to   hotels,   is  certainly  responsible   for 

»  Daniels  ».  Mienbard,  53  Ga.  359.  159;    Clark  v.  Brewer,  6  Gray,  320. 

2  Cowardine  v.  Universal  Life  Ins.  ■•  111.  Cent.  1\.  R.  «.  Cobb,  48  111. 
Co.  32  Gratt.  445.  402.     It  Avas  held  that  non-resident 

3  Adams  v.  Scott,  104  Mass.  164.  common  carriers  are  not  liable  to 
But  see  Bottom  v.  Clark,  7  Cush.  foreign  attachment  for  losing  a  trunk 
487;  Whipple  v.  Bobbins,  97  Mass.  within  the  Stale:  Porter  «.  Hilde- 
107 ;  Edwards  v.  Transit  Co.  104  Mass.  brand,  14  Pa.  St.  129. 


PRIVATE    COKPORATIONS.  243 

any  abuse  of  the  articles  in  the  conveyance,  hut  the  possession 
is  so  tempitrary  and  so  qualified  that  the  trunks  cannot  he  sub- 
jected to  garnishment  in  such  company's  hands  unless  it  holds 
them  under  conditions  different  from  those  that  are  usual.  As 
the  kee])er  of  a  livery  stable  cannot  be  subjected  to  garnish- 
ment because  horses  of  the  defendant  in  an  attachment  suit  are 
kept  in  his  stable,  so  a  like  temporary  possession  of  trunks  for 
transportation  from  depot  to  hotel,  with  like  liability  to  have 
the  owner  take  possession  at  will,  ought  not  to  subject  the 
carrier  to  garnishment  should  a  creditor  of  the  passenger  seek 
to  attach  them.  The  trunks  may  be  attached — the  horses  in 
the  livery  stable  may  be  —  but  not  attached  in  the  hands  of 
third  persons  under  the  circumstances  suggested.  They  may 
be  seized  by  the  shej'iff  as  in  the  hands  of  the  defendant, 
and   taken  directly  into  the  sheriff's  custody.' 

The  possession  which  the  treasurer  of  a  private  corporation 
has  of  the  corporation's  funds  is  not  such  as  to  render  him 
liable  to  garnishment  therefor,  in  an  attachment  suit  against 
the  corporation. 3  Money  of  a  railroad  company,  in  the  hands 
of  a  fiscal  agent,  has  been  held  not  to  be  garnishable  by  a 
creditor  of  the  company. ^  Railroad  bonds,  in  the  hands  of  a 
trustee,  to  be  given  to  stockholders  in  exchange  for  certificates 
of  stock,  were  held  to  be  subject  to  the  debts  of  the  railroad 
company  and  garnishable  in  the  trustee's  hands.* 

'  Hall  V.  Filter  Manf.  Co.  10  Phila.  route  from  Columbus  to  West  Point 

370;  Western  R.  R.  Co.  t).  Tliornton,  in    Georgia,    it    would    seem    clear 

60   Ga.   300.     In    this  case,  a    local  enough  that  the  local   agent  at  the 

agent  of  the  company  was  summoned  end  of  the  route  had  not  such  posses- 

as  garnishee  to  hold  in  his  hands  the  sion  as  would  render  him  liable  as  a 

trunk  of  a  passenger   who   was  de-  garnishee;  and  it  ought  to  be  as  clear 

fendaut  in  the  attachment  suit.    The  that  the   company  itself  would   not 

decision  was  not  that   the  company  have  been  liable.     A  railroad  com- 

could  not  have  been   made   a  garn-  pany  was  held   not   liable   as   garni- 

ishee  but  that  the  agent  was  not  lia-  shee  because  of  possessing  borrowed 

ble  because  it  had   not  been  proved  cars.  Mich.  Cent.   R.  R.   v.   Chicago 

that  he  had  any  power  to  dispose  of  &c.  R.  R.  Co.  1  111.  App.  399. 

the  trunk  at  the  depot  where  he  was  ^  Muetli  v.  Schardin,   4   Mo.  App. 

stationed.     Even  to  this  ruling  there  403. 

was    dissent.     When    it    is  further  *  AVilder  v.  Shea,  13  Bush,  128. 

stated    that  the    passenger  was   ac-  *  Warren  v.  Booth,  51  Iowa,  215. 
companying   his    own    baggage,   en 


244  CORrORATTONS    AS    GARNISHEES, 

A  railroad  company,  operated  in  Oliio,  may  have  garnisli- 
ment  process  served  upon  it  as  if  it  were  a  domestic  coi'poru- 
tion,  though  incorporated  l)y  anotlier  State.  ^ 

If  a  company  mortgage  its  railroad  to  bond-holders,  yet 
letain  the  right  to  possess  and  operate  it  and  receive  the  profits, 
its  earnings  are  garnishablc  by  ordinary  creditors. 2 

There  is  a  class  of  persons  who  have  such  intimate  relations 
with  their  2-)rincipals  that  they  should  not  be  treated  as  third 
persons  so  as  to  be  liable  to  garnishment  in  suits  against  their 
principals.  The  ticket-agent  of  a  railroad  company,  theatre, 
etc.,  may  hold  money  temporarily,  collected  for  the  corporation 
which  he  acts  for,  bnt  he  would  not  be  liable  to  garnishment  in 
a  snit  against  such  corporation.  The  same  may  be  said  of  the 
receiving  or  paying  teller  of  a  bank,  who  momentarily  handles 
funds  for  the  bank.  A  keeper  of  a  toll  gate,  who  makes  daily 
returns  of  his  collections,  should  also  be  deemed  exempt  from 
liability  to  garnishment.  Many  other  illustrations  will  readily 
occur  to  the  legal  reader.* 

But  there  are  other  cases  in  which  servants  of  corporations 
and  other  principals  shonld  be  considered  garnishable,  since 
otherwise  great  wrong  might  be  done  by  collusion  between 
them  and  the  debtor-defendants.  The  captain,  purser  or  clerk 
of  a  steamer  may  have  large  funds  in  hand  upon  the  close  of  a 
voyage,  and,  if  not  liable  to  garnishment,  the  owners  of  the 
steamer  and  the  rightful  proprietors  of  the  funds  might  have 
the  custodian  keep  them  just  to  prevent  the  plaintiff  from 
making  his  money.  In  such  case,  the  captain,  purser  or  clerk, 
in  possession  of  the  money,  could  be  reached  by  garnishment 
in  aid  of  an  attachment  lien. 

It  might  be  said  that  the  captain  is  but  the  right  hand  of  the 
owners,  as  the  officer  of  a  bank  is  of  the  corporation  which  he 

'  Pa.  R.  R.  Co.  V.  Peoples,  31  Ohio  370;  Sprague  v.  Steamboat  Nav.  Co, 

St.  537.  52  Id.  592 ;  Fowler  v.  Pittsburg  &c. 

2  Miss.  &c.  R.  R.  Co.   V.   U.  S.  Ex-  R.  R.  Co.  35  Pa.  St.  23;  Farmers'  &c. 

press  Co.,  81  111.  584.  Nat.  Bank  v.  King,  57  Id.  202.  Ticket- 

^Mueth  ■?>.  Schardin,  4  Mo.   App.  agent  held  liable:  Littleton  Bank  v. 

403;  Nichols®.  Goodheart,  5  111.  App.  Portland  &c.  R.  R.  Co.  58  N.  H.  104. 

574;  McDonald  v.  Giilet,  09  Me.  271 ;  Jn  Central  Flank  Road  r.  Saminons,  -7 

Pettingill  v.  Andr.  R.  R.  Co.  51  Id.  Ala.  380,  toll-keeper  lield  liable. 


PRIVATE    COIU'OKATKJNS.  215 

serves.  SufTicient  diiTerence  of  position  may  be  discernible  to 
show  that  the  fortner  would  be  liable  to  garnishment,  in  the 
case  supposed,  while  the  latter  would  not  be;  but  very  nice 
cases  are  constantly  occuring  in  practice  in  which  the  courts  are 
obliged  to  come  to  conclusions  \)y  consideration  of  the  peculiar 
facts  in  each  and  not  by  any  general  rule. 

"Were  it  true  that  shares  of  a  stockholder  can  ordinarily  be 
reached  by  the  gai-nishment  of  the  coi'poi-ation  in  which  they  are 
held,  in  a  suit  against  himself,'  it  may  safely  be  said  that  shares 
owned  by  a  non-resident,  in  a  foreign  corporation,  cannot  be 
reached  by  serving  notice  on  a  secretary  or  other  officer  of  such 
body  who  may  keep  an  office  within  the  jurisdiction.  The 
notice  may  be  complete,  such  as  would  prove  efficient  if  the 
shares  were  within  the  jurisdiction  and  under  the  control  of  the 
officer,  but  the  insurmountable  difficulty  is  that  the  shares  are 
in  another  State.  They  have  not  even  a  constructive  presence 
at  the  place  where  the  officer  is  found.  By  no  legal  intendment 
can  they  be  there  when  they  are  really  elsewhere  and  liable  to 
attachment  where  they  are. 

It  does  not  affect  the  siins  of  the  shares  when  the  foreign 
corporation  does  business  in  several  places;  it  does  not  give  the 
shares  a  situs  in  ev^ery  place  where  the  business  is  done.  It 
has  been  held  that  a  corporation  does  not  have  a  multiplicity  of 
domiciles  because  it  does  business  in  many  places;  that  its 
existence  is  owing  to  its  legislative  creation,  and  it  cannot  over- 
leap the  boundary  of  the  State  which  gave  it  being.  "We 
regard  the  principle  to  be  too  firmly  settled  by  repeated  adjudi- 
cations of  the  Federal  and  State  courts,  to  admit  of  further 
controversy,  that  a  corporation  has  its  domicile  and  residence 
alone  within  the  boundaries  of  the  sovereignty  which  created  it, 
and  that  it  is  incapable  of  passing  personally  beyond  that 
jurisdiction, "2  say  the  Court  of  Appeals  of  New  York, 

This  doctrine  formerly  was  carried  so  far  as  to  preclude  any 

'  It  bas  been  hekl  that  they  cannot:  Gratt.  502;    In  Re  Glen  Iron  Works, 

Ross  ®.  Ross,  25   Ga.   297 ;  Planters'  17  Fed.  Rep.  324. 

&  Merchants'    Bank   v.   Leavens,  4  ^pjij^^pt^Q    ^_    Bigelow,    93   New 

Ala.   753.      And   that   they   can  be:  York,  598,  (citing  Bank  of  Augusta 

Chesapeake  R.  E.   Co.  v.  Paine,  19  v.  Earle,  13  Pet.  519 ;  Lafajette  Ins. 


Zi6  CORPORATIONS    AS    GARNISHEES. 

action  against  a  corporation  on  a  personal  demand  except  in  the 
State  of  its  creation.  It  was  held  that  it  dwelt  at  home  and 
could  not  "migi'ate  to  another  sovereignty;"  that  its  officers 
could  not  carry  their  corporate  functions  with  them  wlien 
crossing  the  line  from  the  State  of  its  domicile;  that  there  was 
no  mode  to  compel  its  appearance  at  any  court  beyond  tlie  State 
in  which  tlie  corporation  was  chartered. ^  The  doctrine  was 
mirrow  and  prejudicial  to  commerce;  it  worked  to  the  detriment 
both  of  corporations  and  their  creditors.  Some  courts  there- 
fore, though  holding  the  general  doctrine,  excepted  corporations 
which  sent  officers  into  another  State  to  transact  corporation 
business  there.  ^  This  exception  has  crystalized  into  statute 
law  in  many  States;  and  now  it  is  generally  held  to  be  the  pre- 
vailing doctrine.  3 

The  consent  of  the  State  into  which  a  foreign  corporation  sends 
officers  and  does  business,  is  necessary;  and,  in  granting  it, 
conditions  may  be  imposed.*  The  conditions  obviously  must 
be  constitutional,  consonant  with  the  maintenance  of  the  juris- 
diction of  each  State  from  encroachments,  and  such  as  will  tfive 
foreign  corporations  the  opportunity  of  defending  suits  just  as 
natural  persons  must  be  afforded  such  opportunity.  ^ 

If  the  conditions  imposed  upon  a  foreign  corporation  go 
beyond  these  restrictions;  if  they  nominally  authorize  service 
upon  a  private  member,  or  even  an  officer  of  a  foreign  corpo- 
ration who  is  not  autliorized  by  it  to  represent  the  body,  when 
found  within  tlie  State  in  which  the  suit  is  brouglit  and  in 
which  the  corporation  is  not  chartered,  they  would  virtually 
deny  notice  to  the  defendant  and  thus  cut  him  off*  from  any 
opportunity  of  defense. 

The  corporate  entity  cannot  travel  from  one  State  to  another, 

Co.  V.  French,  18   How.    (U.  S.)  404;  Monlon  v.  Treuton  Ins.  Co.  24  N.  J. 

Jlerrick  v.  Van  Santvoord,  34   N.  Y.  L.  222. 

208;  Stevens®.  Plioeuix  Ins.  Co.,  41  Id.  ^BaiT  x.  King,  96  Pa.  St.  485;  Dar- 

150;)  Mayer  v.  Liverpool  Ins.  Co.  40  lington  v.  Rogers,  13  Pliila.  102. 

Md.595.  4  Paul    v.   Virginia,  8   Wall.    168; 

'  McQueen  v.  Middleton  Man.  Co.  Lafayette  Ins.  Co.  o.  French,  18  How. 

16    Johns.    5;     Peckham     «.    North  401. 

Parish  in  Haverhill,  16  Pick.  274.  ^  Id. ;     Newell    v.  Great   Western 

2  Libbey  v.  Ilodgdon,  9  N.  H.  394;  Railway  Co.,  19  Mich.  344. 


PRIVATE    CORPORATIONS.  247 

but  it  can  authorize  an  agent  to  represent  it  beyond  its  liome, 
and  no  other  power  can  appoint  snch  agent.  If  one  of  its  oth- 
cers  is  doing  business  for  it  in  a  State  which  has  given  its  con- 
sent upon  the  condition  that  such  officer  thus  engaged  may  be 
served  with  process  binding  on  his  principal,  doubtless  he  may 
be  legally  served  so  as  to  bind  the  corporation;  but  if  lie  is 
there  on  his  own  account  merely,  the  foreign-chartered  body 
cannot  be  served  by  the  service  upon  him,  officer  of  the  corpo- 
ration though  he  be.* 

The  reasoning  which  shows  that  foreign  corporations  must  have 
summons  served  on  their  own  constituted  representatives  in 
personal  actions,  is  just  as  applicable  and  forcible  when  the 
suit  is  only  nominally  personal  but  is  in  effect  against  their 
property,  (an  attachment  suit.)  In  either  case  there  must 
be  either  summons  or  publication  notice,  and  thus  opportunity 
for  defense  accorded. ^ 

A  corporation  may  sue  and  be  sued  in  a  State  other  than  that 
of  its  domicile,  where  it  does  business  and  has  an  officer  repre- 
senting it  who  may  be  served  with  process.^  But  its  liability 
to  suit  there  is  no  argument  to  prove  that  its  property,  situated 
at  its  domicile,  is  constructively  in  the  State  and  liable  to  be 
attached.  Nor  is  it  any  argument  that  a  non-resident  who  owns 
stock  in  the  corporation  at  its  domicile,  has  such  stock  con- 
structively wherever  elsewhere  the  corporation  may  have  estab- 
lished an  agency,  so  as  to  render  it  attachable  as  his  property 
in  every  such  place. 

If  a  corporation  may  be  deemed  a  creditor  of  the  share-holder 
wherever  it  has  established  an  agency  and  placed  officers  so  that 
it  may  there  sue  and  be  sued;  and  if,  under  such  circumstances, 
by  reason  of  statutory  provisions,  the  credit  may  be  subject  to 
the  garnishment  process  in  a  case  of  foreign  attachment  against 


» Id. ;  St.  Clair  v.  Cox,  106  U.  S.  350,  Co.  v.  French,  18  How.   (U.  S.)   404; 

358.  Jones  v.  N.  Y.  &  Erie  R.  Co.  1  Grant, 

2  Id.  p.  351:     "No    question  was  457;  Fitliian  «.  N.  Y.  &  Erie  K  Co. 
raised"  on  this  point.  31  Pa.  St.  114;  McAllister  v.  Pa.  Ins. 

3  Gibbs  V.  Queen  Ins.  Co.  63  N.  Y.  Co.  28  Mo.  214;  Brauser  v.  NewEng. 
114;  20  Am.  Rep.  513;  Lafayette  Ins.  Ins.  Co.  21  Wis.  506. 


24:8  CORl'ORATIOiS'S    AS    GARNISHEES, 

tlie  non-resident  stockholder, ^  it  does  not  follow  that  the  shares 
could  be  directly  attached  as  z^/i'i/?«7^' within  a  jurisdiction  other 
than  their  own  situs;  in  other  words,  to  quote  again  from 
Plimpton  V.  Bigelow,  {supra):  "Manilestiy  the  res  cannot  be 
within  the  jurisdiction,  as  a  mere  consequence  of  a  legislative 
declaration,  when  the  actual  locality  is  nndenial)ly  elsewhere. 
*  *  *  Whatever  view  may  be  taken  as  to  the  right  to  attach 
a  debt  owing  by  a  foreign  corporation  to  a  non-resident,  by 
service  of  notice  on  an  agent  of  the  corporation  within  the 
jurisdiction,  we  think,  in  respect  to  corporate  stock,  which  is 
not  a  debt  of  the  corporation  in  any  proper  sense,  it  would  be 
contrary  to  principle  to  hold  that  it  can  be  reached  by  such  a 
notice.  We  are  therefore  of  the  opinion  that  the  fundamental 
condition  of  attachment  proceedings,  that  the  o'es  must  be 
within  the  jurisdiction  of  the  court  in  order  to  an  effectual 
seizure,  is  not  answered  in  respect  to  shares  in  a  foreign  corpo- 
ration by  the  presence  here  of  its  officers,  or  by  the  fact  that 
the  corporation  has  property  and  is  transacting  business  here 
and  that  section  647,  [of  the  N.  Y,  Code,  which  they  were 
expounding]  must  be  construed  as  applying  to  domestic  corpo- 
rations only,"  2 

An  intangible  interest  may  be  the  res  of  a  direct  attachment 
suit  as  well  as  a  tano-ible  thins:.  ^  The  difference  in  the  method 
of  seizure  does  not  render  the  one  more  liable  to  attachment 
than  the  other.  Either  may  be  reached  by  direct  attachment 
or  by  garnishment,  depending  solely  on  its  custody — whether 
in  the  hands  of  the  defendant  or  in  those  of  a  third  person. 
Either  may  be  made  the  res  of  an  attachment  suit,  if  it  is  within 
the  jurisdiction;  neither  can  be,  (on  any  general  principle,) 
if  it  is  without  the   jurisdiction.     Garnishment  process  cannot 

^  Barr    ■».   King,   96   Pa.    St.  485;  the  defendant  might  ])ave  the  attacli- 

Natioual   Bank   v.   Huntington,   129  ment   vacated:  Dunlop   v.  Patterson 

Mass.  444.  Fire  Ins.  Co.  74  N.  Y.  145;  ao  Am. 

2  The  court  cited  Moore  v.  Gennett,  Rep.  383 ;  Blossom  v.  Estes,  84  N.  Y. 

2Tenn.  Ch.  375;  Christmas  «.  Biddle,  617. 

13  Pa  St.  223 ;  Childs  ®.  Digby,  24  Id.  ^  A  claim  against  a  railroad  com- 

26;   Drake  on  Attachment,   §§244,  pany  for  damages,  etc.,  is  not  subject 

471,  478,  to  support  the  doctrine  as  a  to   attachment:  Selheimer  «.  Elder, 

general  principle ;  and,  to  show  that  98  Pa.  St.  154. 


PKIVATE    CORPORATIOKS.  2i9 

be  prosecuted  without  a  res  any  more  than  direct  process  of 
attachment  can.  If  a  credit  is  subjected  to  garnishment,  that 
is  the  intangible  res  which  is  proceeded  against.  If  some  right 
susceptible  of  seizure  only  by  notice  is  held  directly  by  the 
defendant,  it  may  be  the  intangible  res  that  is  proceeded 
against.  So  the  doctrine  that" shares  in  a  corporation  cannot 
he  attached  when  they  are  located  beyond  the  jurisdiction  should 
be  extended  to  "intangible  interests"  and  to  credits,  either 
located  or  payable  there  as  the  case  may  be;  and  it  is  difficult 
to  conceive  how  any  legislature  can  effectually  declare  any 
property  whatever  to  be  in  a  different  place  from  that  which  it 
really  occupies. 

In  a  case  of  foreign  attachment,  in  wdiich  the  non-resident 
debtor  is  not  served  and  does  not  appear,  though  notified  by 
publication;  and  in  which  a  creditor  of  the  defendant,  being 
garnished,  answers  that  he  owes  the  defendant,  if  that  credit 
thus  attached  in  third  hands  is  not  the  res  of  the  suit,  ao^ainst 
what  does  the  attaching  creditor  proceed?  And  if  the  credit  is 
amenable  only  to  a  foreign  jurisdiction,  how  can  the  court  be 
said  to  have  jurisdiction  over  it?  It  would  be  precisely  as  if 
the  garnishee  had  ansM^ered  that  he  held,  in  his  possession  and 
under  his  control,  tangible  property  in  another  State,  belonging 
to  the  defendant.  The  credit  is  attachable  when  it  has  followed 
the  person  garnished  and  has  thus  come  within  the  jurisdiction; 
when  it  is  collectible  within  the  jurisdiction.  Its  liability  is 
governed  by  precisely  the  same  principle  which  governs  that  of 
things  susceptible  of  manipulation. ^ 

If  the  court's  jurisdiction  is  confined  to  a  county,  service  on 

'"Credits,    choses  in   action   and  tion,  to  be  rightly  exercised,  must  be 

other  intangible   interests  are  made  founded   upon   the   presence   of  the 

by  statute  susceptible  of  seizure  by  person  or  thing,  in  respect  to  which 

attachment.      The    same    principle,  the    jurisdiction  is   exerted,   within 

however,  applies   in  this  case  as   in  the  territory.    (Story's  Confl.  of  Laws, 

the   other;  the   res,  that   is,   the   in-  §  §  532,  592,  a;    Gibbs  «.  Queen  Ins. 

tangible  right  or  interest,  to  be  sub-  Co.  63   N.  Y.  114;  20  Am.  Rep.  513; 

ject  to  the  attachment,  must  be  with-  Street    y.   Smith,   7   W.   &   S.    447.) 

in    the     jurisdiction     *    *     *    The  PUmptoti  v.  Bicjelow,  93  N.  Y.  SOU, 

principle   [is]   found  in  the  codes  of  597. 
all  enlightened  nations,  that  jurisdic- 


2o0  COKrOKATIONS    AS    GAKNISIIEES. 

a  railroad  company  creates  no  lien  upon  property  not  within  the 
county  at  the  time. ^ 

Where  the  jurisdiction  of  the  court  is  established,  there  can 
be  no  doubt  that  a  stock  subscriber  wlio  has  not  paid  may  be 
garnished  as  the  debtor  of  the  corporation  wliich  has  sold  him 
tlie  stock,  in  an  attachment  suit,  foreign  or  domestic,  against 
the  corporation.  2  And  he  is  chargeable  for  unjjaid  calls  on 
assessments.  3 

As  the  receiver  for  a  foreirn  corporation,  appointed  m 
the  State  where  such  body  is  domiciliated,  must  make  him- 
self a  party  to  the  suit  in  the  State  where  it  is  instituted  against 
property  of  such  corporation,  before  he  can  plead  and  defend 
against  the  attachment,^  so  he  must  be  duly  qualified  to  rep- 
resent the  corporation  before  it  can  be  garnished  through  him. 

Though  the  corporation  may  legally  designate  some  minor 
officer  upon  whom  process  may  be  served,  or  authorize  such 
officer  to  answer  when  the  service  may  have  been  on  another, 
a  minor  officer  not  thus  designated  cannot  be  made  the  repre- 
sentative of  the  body  at  the  will  of  the  attaching  creditor, 
nor  at  his  own  will;  and  therefore  neither  service  upon  him 
nor  acceptance  thereof,  nor  even  his  appearance,  can  bind 
the  corporation  without  its  assent,^  either  as  defendant  or 
garnishee. 

1  Sutherland  v.  Peoria  Bank,  78  *  S.  C.  R.  R.  v.  People's  Saving  In. 
Kan.  '250.  stitutiou,  64  Ga  18. 

2  Meints  v.  East  St.  Louis  Rail  ^  Duke  v.  R.  I.  Locomotive  Works, 
Mill  Co.  89  111.  48;  Pease  v.  Under-  11  R.  I.  599;  Varnell  v.  Speer,55  Ga. 
writers' Union,  1  111.  App.2S7;  Lang-  132;  Clark  v.  Chapman,  45  Ga.  480; 
ford  V.  Ottumwa  Water  Power  Co.  Daniels  v.  Meiuhard,  53  Id.  359; 
59  Iowa,  283.  Clafliu  v.  Iowa  City,  12  Iowa,  284; 

3  Faull  V.  Alaska  G.  &  S.  M.  Co.  8  Raymond  v.  Rockland  Co.  40  Ct.  401 ; 
Sawyer,  420;  Bingham  v.  Rushing,  5  Greer  v.  Rowley,  1  Pittsburg,  1 ;  Ken- 
Ala.  403;  Pease  v.  Underwriters'  nedy  v.  H.  L.  &  S.  Society,  38  Cal. 
Union,  1  111.  App.  287;  Hays  v.  Ly-  151. 

coming  Fire  Ins.  Co.  99  Pa.  St.  G21. 


DESCRirXION    OF    ATTACHED    riiOrEKTY. 


251 


CHAPTEE    yill. 


RETURN    AND     PUBLICATION. 


§  1,     Description  of  Attached  Prop-      §  3. 

erty.  4. 

2.     Requisites  of  the  Return.  5. 


Amendments. 
Garnishment  Return. 
Publication  Notice. 


Sec.  1.    Description  of  Attached  Property. 

The  officer  who  has  executed  the  writ  iniist  account,  within 
tlie  time  sj^ecilied  therein,  to  the  conrt,  in  M-ritiug,  showing 
whether  he  has  seized  any  property;  what  he  has  seized;  that 
it  belongs  to  the  defendant;  how  and  when  he  took  it  from  the 
defendant,  or  how  and  when  he  attached  in  tlie  liatids  of  third 
persons,  and  all  essential  matters.  ^  The  court  takes  its  knowl- 
edge of  the  actual  attachment  from  the  slieritf  or  other  seizing 
officer's  official  report  of  it;  that  is  an  indispensable  link  in  the 
chain  of  the  proceedings;  and  the  officer  should  make  the  state- 
ment full  and  clear,  but  no  form  is  prescribed  and  technical 
accuracy  is  not  reqxiired.  2 

The  important  matter  is  certainty  and  a  substantial  compli- 
ance with  tlie  law. 3  Thus,  the  recitation  of  the  affidavit  should 
be  made  if  the  statute  requires  it;'*   and  any  requirement  as  to 


1  Page  V.  Generes,  6  La.  Ann.  551 ; 
Stocliton  «.  Douney,  Id.  581 ;  Nichols 
v.  Patten,  18  Me.  231;  Desha  v. 
Baker,  3  Ark.  50i);  Gibson  v.  Wilson, 
5  Id.  423;  Willard  v.  Sperry,  16 
Johns.  121 ;  Bryan  v.  Trout,  90  Pa. 
St.  492;  Moore  v.  Kidder,  55  N.  H. 
488;  Wilder  v.  Holden,  24  Pick.  8; 
Paine  ?).  Farr,  118  Mass.  74;  Moore 
V.  Coates,  43  Miss.  225. 

2  Rowan  v.  Lamb,  4  Greene,  408; 
Byrd  v.  Hopkins,  8  Sm.  &  M.  441; 
Bannister  ».  Higginsou,    15  3Ie.  73; 


Baldwin  v.  Conger,  17  Miss.  516. 

3  Pond  V.  Baker,  55  Vt.  400;  Buck- 
lin  V.  Crampton,  20  Id.  261;  Thomp- 
son V.  Eastburn,  16  N.  J.  L  100; 
Meuley  v.  Zeigler,  23  Tex.  88;  Stod- 
art  V.  McMahan,  35  Id.  267;  Saund- 
ers V.  Columbus,  &c.,  Ins.  Co.  43 
Miss.  583;  Tucker  «.  B3rars,  46  Miss. 
549;  Rankin  v.  Dulaney,  43  Miss. 
197;  Wharton  «.  Conger,  17  Miss. 
510;  Ezelle  v.  Simpson,  42  Id.  515; 
JetlVies  v.  Harvie,  38  Id.  97. 

*  Woodley  v.  Shirley,  Minor,  14. 


252  EETUEN    AND    TUBLICATION. 

the  defendant's  ownersliip  of  the  property,  description,  valua- 
tion, time  and  manner  of  attacliiiig,  etc.^  must  be  obeyed;  but, 
in  the  absence  of  express  statutory  injunctions  on  these  sub- 
jects witli  respect  to  the  return,  all  that  is  necessary  is  an  hon- 
est report  showing  obedience  to  the  writ. 

The  fact  that  tlie  property  was  seized  as  that  of  the  defendant 
should  plainly  appear,  if  not  definitely  stated. ^  Should  the 
retui-n  fail  to  state  this  fact,  yet  aver  that  the  attachment  was 
made  in  obedience  to  the  writ,  there  is  an  implication  that  the 
property  was  seized  as  that  of  the  defendant.  ^  And  officers 
have  been  allowed  to  make  the  statement  definite,  in  this 
respect,  by  emendation  after  filing. ^ 

There  is  no  important  conflict  of  decisions  on  this  subject. 
It  is  well  settled  that  if  the  statute  makes  it  sacramental  that 
the  oflicer  must  definitely  state  that  the  property  belongs  to  the 
defendant,  he  must  comply;  that  if  it  does  not,  no  direct  state- 
ment is  necessary,  if  there  is  shown  a  substantial  obedience 
to  the  writ;  that  the  statement  of  ownership  is  conclusive 
only  of  the  fact  that  the  property  was  seized  as  that  of  the 
person  named;  that  the  question  of  ownership  is  yet  open 
for  contest  between  those  interested  in  its  assertion  or  denial, 
and  that  the  plaintifi"  is  not  to  lose  the  benefit  of  his  attach- 
ment because  the  defendant  was  not  definitely  named  as  the 
owner  in  the  return. 

The  defendant  who  has  been  summoned,  or  who  has  appeared, 
cannot  deny  that  the  property  seized  is  his,*  nor  comijlain  that 
the  oflicer  did  not  report  it  to  be  his.     If,  however,  he  is  noti- 


1  "Repine  t).  McPherson, 2  Kan.340;  Id.  613;  Lucas®.  Goodwin,  6  Id.  831; 

Anderson  v.  Scott,  2  Mo.  15;  Mauls-  Saunders  v.  Columbus   Life  Ins.  Co. 

by  -y.   Farr,    Id.    438;  Ridgeway  «.  43    Mi.ss.   583;  Ivirksey   T:.    Bates,    1 

Farr,  Id.  440;  Mason  t.  Anderson,  3  Ala.  303;  Miller  v.  McMillan,   4  Id. 

Mou.  29P ;  Clay  «.   Neilson,   5   Ran-  527. 

dolph,    596;    Stoddart  «.  McMahon,  ^  ]\j;jison  «.  Anderson,  3  T.  B.  Mon. 

85  Tex.  267.  293;  Anderson  v.  Scott,   2   Mo.   15; 

2M*iller  ®.  Fay,  40Wis.  633;  John-  Bank  of  North  West  «.  Taylor,   16 

son  V.  Moss,  20  Wend.  145;  Porter  «.  Wis.  609. 

Pico,  55  Cal.  105 ;  Bickerstaff  v.  Pat-  *  Campbell    v.    Robert    ]\Iorris,    3 

terson,  8  Port.  245;  King  «.  Bucks,  Harris  &  McHenry,  (Md.)  553. 
11  Ala.  217;  Thornton   v.   Winter,  9 


DESCRIPTION    OF    ATTACHED    PKOPERTT.  253 

fied  onlj  by  publication  and  does  not  appear,  and  if  it  were 
good  law  that  any  property  of  his  can  be  executed  to  effectuate 
a  judgment  against  him  under  such  circumstances,^  he  would 
be  interested  afterwards  in  showing  that  the  attached  property 
was  not  his  and  that  publication  alone  did  not  give  jurisdiction. 
So,  a  purchaser,  defending  an  ejectment  suit,  is  vitally  inter- 
ested in  the  question  whether  the  attached  and  condemned 
property  belonged  to  the  attachment  defendant.  But,  in 
neither  case  can  the  officer's  retui-n  be  taken  as  proof  of  the 
fact.  Both  may  be  concerned  as  to  his  return  of  ownership, 
with  regard  to  the  validity  of  the  attachment;  for  if  it  is 
reported  as  belonging  to  any  otlier  person  than  the  defendant, 
the  attachment  is  void. 

The  proceeding  being  in  rem  with  limited  notice  and  effect 
cannot  hold  as  one  against  a  thing  irrespective  of  persons. 

Whether  the  defendant  is  in  court  or  not,  it  ouo-ht  to  make  no 
difference  with  regard  to  the  importance  of  stating  in  the  return 
the  fact  that  the  property  attached  belongs  to  him.  The 
attachment's  validity  does  not  depend  upon  his  being  served  or 
being  in  court.  If  invalid,  his  appearance  does  not  necessarily 
cure  it;  if  valid,  his  non-ap]-)earance  after  notification  by  publi- 
cation cannot  impair  it.  Distinction  has  been  made,  however,^ 
but  it  has  not  been  generally  drawn  in  all  the  States. 

The,  description  of  personal  property  as  belonging  to  the 
defendant  has  been  held  necessary, ^  yet  the  taking  of  the  prop- 
erty from  the  possession  of  the  defendant,  its  preservation  in 
the  custody  of  the  sheriff",  and  the  presumption  that  that  officer 
has  done  his  duty  and  that  his  answer  is  resjDonsive  to  the 
command  that  he  seize  property  of  the  defendant,  should  be 
deemed  sufficient,  and  has  been  so  considered.'* 


1  See  Chapter  on  Jurisdiction.  Mo.  438;  Eidgeway  v.  Farr,  Id.  440; 

2Stoddart  v.    McMahon,    35   Tex.  Repine  y.  McPherson,  2  Kan.  340. 
267;  Menley  «.  Zeigler,  23  Id.  88.  ^  Drake  v.    Mooney,   31   Vt.    619; 

3  Pond    'J.    Baker,   55  Vt.    400,   in  Porter  ».  Pico,  55  Cal.  165;  Johnson 

which  both   real  and  personal  prop-  v.  Moss,    20    "Wend.    145;    Lucas  v. 

erty  were  attached ;  Clay  «.  Neilson,  Godwin,  C  Ala.  831;    Bickerstatf  v. 

5  Randolph,  (Va.)  596;  Mason  i'.  An-  Patterson,    8    Porter,    245;  King  v. 

derson,  3  Monroe,   293;  Anderson  v.  Bucks,  11  Ala.  217. 
Scott,  2  Mo.  15;  Maulsby  v.  Farr,   3 


234:  EETUEN    AND    PUBLICATION. 

If  property,  real  or  personal,  is  attaelied  as  tlie  defendant's, 
and  is  really  his,  and  is  described  with  certainty,  it  seems  of 
little  importance  what  the  sheriff  says  about  the  title,  unless 
he  should  aver  the  title  to  be  in  some  person  other  than  the 
defendant.  Should  he  make  return  that  he  has  seized  some 
third  person's  land,  the  attacliment  would  be  invalid  since  it 
depends  s6  much  upon  the  return;  the  presumption  that  the 
officer  had  done  his  duty  would  be  removed,  and  the  notice  to 
the  tenant  in  possession  would  not  alone  constitute  a  valid 
levy. 

If  the  defendant,  in  the  absence  of  any  statement  by  the 
sheriff  as  to  whom  the  attached  pi-operty  belongs,  should  appear 
and  claim  it,  he  would  be  estopped  from  afterwards  attacking 
the  attachment  on  the  ground  that  the  property  was  not  his, 
unless  his  title  has  accrued  since  the  levy.  The  question 
always  is,  whether  the  property  belonged  to  the  defendant  at 
the  precise  time  when  it  w\as  attached.  If  he  sold  and  trans- 
ferred it  before,  or  if  he  bought  it  since,  the  attachment  is 
invalid.  Nearly  all  the  difficulties,  with  respect  to  the  at- 
tachment of  land  as  that  of  the  defendant,  depend  for  solution 
upon  principles  applicable  to  titles,  which  the  opinion  and  state- 
ment of  the  sheriff  does  not  at  all  affect.  However,  if  prop- 
erty is  attached  as  the  defendant's  when  it  was  not  and  is  not 
his,  he  has  no  interest  to  attack  the  attachment. 

The  law  is  well  settled  as  to  what  other  description  of  the  at- 
tached property  is  necessary.  It  must  be  such  as  to  identify  it. 
Seeming  conflicts  of  decisions  on  this  subject  will  be  found  not 
really  such.  The  differences  turn  upon  details — whether  they 
amount  to  certainty  of  identification  in  particular  cases.  In 
this  there  is  nothing  remarkable,  since  the  circumstances  differ 
in  every  case,  and  courts  are  always  likely  to  vary  with  each 
other  in  their  views  of  evidence  on  minor  points.  The  princi- 
ple may  be  fairly  said  to  be  uniformly  recognized  tluit  the 
return  must  show  to  a  certainty  what  has  been  attached,  and 
describe  it  so  that  it  cannot  be  mistaken  for  something  else. 
A  ship  is  sufficiently  identified  if  described  as  the  ship  Orion, 
of  700  tons  burden,  together  with  her  tackle,  apparel  and  furn- 


DESCEirTION    OF    ATTACHED    PKOPERTY.  255 

iliire,  the  property  of  tlie  defendant  herein;  tlie  8teaml)oat 
J^ateJies,  etc.,  (siniihir  additions  following;)  but  should  a  name- 
less and  nnhnown  watercraft  be  attached,  such  as  a  Hat-boat,  a 
more  particular  characterization  would  become  necessary,  such 
as  the  length  and  width,  or  some  other  matter  essential  to  the 
identity  of  the  property.  The  best  description  of  land  is  by 
metes  and  bounds  but  it  is  not  indispensable.  If  the  defend- 
ant owns  but  one  larm  in  a  county,  and  the  return  is  that  his 
farm  in  that  county  is  attached,  it  would  ordinarily  be  suthcient 
in  an  attachment  proceeding,^  since  only  the  defendant  can  be 
concluded  by  the  judgment,  though  it  would  be  insufiicient 
were  the  proceedirg  one  to  conclude  the  world,  like  an  action 
to  ±ix  the  status  of  a  thing  forfeited.  So,  if  the  attach- 
ment defendant  owns  but  one  house  and  lot  in  a  city,  it  would 
be  better  to  describe  it,  for  instance  as  the  three  story  brick 
house,  numbered  three  hundred  and  sixty,  on  Thalia  Street,  in 
the  square  numbered  forty  on  the  city  plan,  etc.,  together  with 
his  lot  on  which  the  house  stands,  giving  the  names  of  the 
streets  which  bound  the  square;  but  if  it  is  the  only  house  of 
the  defendant,  situated  in  the  city,  it  might  be  designated  as 
his  house,  together  with  his  lot  on  which  it  stands,  in  the  city. 
The  sheriff  is  not  absolutely  bound  to  resort  to  the  records,  and 
give  a  synopsis  of  the  recordation,  but  that  would  enable  him 
to  givea  better  description.  2 

A  stock  of  goods  is  often  the  subject  of  seizure.  If  the 
whole  stock  in  a  store  is  attached,  described  as  the  defendant's 
entire  stock  of  dry  goods,  or  of  hardware,  or  of  groceries,  as 
the  case  may  be;  as  being  in  a  certain  building,  (giving  the 
number  of  the  building  and  the  name  of  the  street,  city,  etc.,) 
the  description  could  not  be  mistaken;  and  as  the  sheriff  must 
take  the  key  and  keep  control  personally  or  through  a  deputy  or 
some  other  appointed  custodian,  there  could  iiardly  be  raised 
any  question  as  to  the  identity  of  the  property  seized.     lie  is 

1  Moore  ij.  Kidder,  55  N.    H.  488;  scription  would  be  sufficient  to  point 

Howard  v.   Daniels,  2    N.    H.    137;  to  the  records  for  a   perfect  descrip- 

Crosby  v.  Allyn,  5  Greenl.  453.  tion.     Bryant  v.   Osgood,   52  N.   H 

^  Sucli  certain  though  general  de-  188. 


256  KETURN    AND    PUBLICATION. 

not  obliged,  in  every  case,  to  take  an  invoice  of  the  goods  and 
attach  it  to  his  return. 

Shonki  he  attach  only  some  portion  of  the  goods,  certainty 
would  recjuire  that  he  make  an  inventory  and  attach  it  to  his 
report.  Should  he  attach  a  single  article,  he  should  designate 
it  with  precision.  Suppose  a  horse  is  attached:  if  returned 
simply  as  "a  horse"  belonging  to  the  defendant,  the  indefinite- 
ness  would  not  render  the  attachment  viscious,  since  the  ofiicer 
would  have  the  attached  horse  in  custody,  but  it  would  be  bet- 
ter to  say  a  bay  horse,  white,  black — as  the  case  might  be;  and, 
if  the  animal  is  a  noted  one — a  celebrated  trotter,  for  instance, 
the  name  would  conduce  to  a  better  description.  Courts  will 
judge,  in  each  particular  case,  whether  the  property  seized  is 
properly  identiiied,  or  whether  it  is  so  loosely  described  as  to 
be  easily  confounded  with  other  property.^ 

An  attachment  may  be  dissolved  because  of  uncertainty  of 
description  in  the  return,  if  the  defect  is  not  cured  in  any  legal 
way,  because  the  validity  of  the  lien  depends  upon  positiveness 
as  to,  that  upon  which  it  rests;  and  as  a  tenant  in  possession  of 
real  estate  would  have  no  proper  notice  by  an  inadequate 
description  endorsed  upon  the  writ  served  on  him,  there  would 
be  no  valid  attachment.  ^ 

Since  the  sheriff's  duty  is  to  attach  property  enough  to  cover 
the  claim  sued    upon,  when  he    is    not   restrained  to  le^s  by 

^  Porter  «.  Pico,  55  Cal.  1G5;  Fen-  McCown,  6  Id.  370;  Pearce  v.  Bald- 
glin  V.  Cairo  &  St.  Louis  R.  R.  Co.  6  ridge,  7  Ark.  413;  Porter  v.  Byrne, 
Mo.  App.  580;  Pierce  v.  Strickland,  10  Ind.  146;  Messner  v.  Lewis,  20 
2  Story,  292;  Bnckliardt  v.  McClel-  Tex.  221 ;  Meniey  ?;.  Zeigler,  23  Tex. 
Ian,  I  Abb.  App.  Dec.  2G3;  Oj'sted  «.  88;  Hancock  v.  Henderson,  45  Tex. 
Shed,  12  Mass.  513;  Taylors.  Mixter,  479;  Rogers  v.  Bonner,  55  Barb.  9; 
11  Pick.  341;  Weish  v.  Joy,  13  Id.  Perrin  v.  Leverett,  13  Mass.  128. 
477;  Baxter  v.  Rice,  21  Id.  197;  2  Pond  ?;  Baker,  55  Vt.  403 ;  Men- 
Moore  V.  Kidder,  55  N.  H.  4S8;  ley  «.  Zeigler,  23  Tex.  88;  Porter®. 
Bruce  v.  Pettengill,  12  N.  H.  341;  Byn  e,  10  Ind.  146;  Hathaway  v. 
Ela  «.  Sliepard,  32  Id. '277;  Bryants.  Larrabee,  27  Me.  449;  Lanibard  v. 
Osgood,  52  Id.  182;  Crosby  d.  AUyn,  Pike,  33  Id.  141;  Henry  ?j.  Mitchell, 
5  Me.  453;  Haynes  v.  Small,  22  Me.  32  Mo.  512;  Fitzhugh  v.  Hellen,  3 
14;  Carleton  ».  Ryerson,  59  Me.  438;  Har.  &  J.  206.  See  Greeu  v.  Pyne, 
Fullam  V.  Stearns,  30  Vt.  443;  Toul-  1  Ala.  235. 
min  V.  Lesesne,  2  Ala.  359 ;  Gary  v. 


REQUISITES    OF    THE    RETURN.  257 

instructions  from  the  plaintiff,  lie  should  designate  in  his 
return  the  approximate  value  of  whatever  he  has  seized,  which 
may  be  ascertained  by  appraisement,  and  which  must  be  so 
ascertained  under  some  statutes.  ^  An  appraiser's  'certificate 
put  on  the  back  of  the  writ,  and  made  part  of  the  return,  is 
sufficient  report  of  the  value  of  goods  attached. 2  A  return 
showing  enough  property  seized  to  satisfy  the  sum  claimed  by 
the  plaintii]['  in  his  prayer,  will  show  substantial  obedience  by 
the  officer  to  the  mandate,  though  the  several  counts  of  the 
plaintiff's  declaration  may  amount  to  a  statement  of  greater 
indebtedness  on  the  part  of  the  defendant  than  that  for  which 
the  plaintiff  prayed.  ^ 

Sec.  2.    Requisites  of  the   Return. 

If  a  corporation  is  served,  the  officer  should  show  upon  what 
representative  of  tlie  body  the  service  was  made.  There  should 
not  be  a  vague  statement  that  the  writ  was  served  upon  an 
agent  of  the  corporation;  for,  though  his  name  may  be  coupled 
with  his  designation  as  agent,  it  may  be  that  he  is  not  such  an 
agent  as  will  make  the  service  upon  him  a  legal  one  on  his 
principal.  Every  agent  of  a  corporation  cannot  stand  for  the 
body  when  it  is  sueing  or  being  sued.  The  president  is  usually 
the  proper  representative  of  a  corporation  upon  whom  process 
binding  it  may  be  served,  but  an  inferior  officer  may  be  duly 
authorized  to  represent  a  corporation  in  this  respect.  How  are 
we  to  know,  when  an  officer  names  a  man  on  whom  process  has 
been  served,  and  adds  that  he  is  agent  of  the  corporation, 
(defendant  or  garnishee  in  the  suit,  as  the  case  may  be,)  that 
the  corporation  itself  has  been  reached?* 

1  Neglect  to  insert  the  value  may  be  a  compliance  with  the  law  in  an 
be  cured  by  legal  presumption  where  officer's  return  to  the  registry  of 
the  statute  does  not  imperatively  re-  deeds  of  an  attachment  of  real  es- 
quire a  statement  of  the  amount.  tate.  Lincoln  v.  Strickland,  51  Me. 
Childs  V.  Ham,  23  Me.  74;  Barney  ^i.  321. 

Weeks,  4  Vt.  146.  *  Held    in  the    Lake    Shore,    etc. 

2  Kennedy  v.  Pike,  43  Me.  423.  Ry.  Co.  v.  Hunt,  39  Midi.  469,  that, 
^  When   the    amounts  claimed  in      under  §   G403    Comp.   Laws,    (How- 

the  counts  in  the  writ  exceed  the  rt(Z  ell's  Stat.  §  8055,)  the  "general  or 
damnum,  the  statement  of  the  latter  special  agent"  of  a  corporation  on 
as  "the  sum   sued  for,"   was  held  to      whom   a  summons    in  garnishment 

17 


258  RETURN    AND    PUBLICATION. 

Where  landed  projiertj,  such  as  a  house  and  k^t,  is  attached, 
it  is  important  that  notice  be  given  to  the  tenant  in  possession, 
or  a  copy  of  the  writ  left  with  him,  or  some  act  showing  the 
transfer  of  legal  possession  froiii  the  defendant  to  the  ofticer,  if 
the  law  of  the  State  re(|nires  such  methods  of  seizure,  or  any 
one  of  them,  or  like  methods;  and  whatever  is  required  should 
be  returned  as  accomplished. i  It  is  not  sufficient,  in  such  case, 
to  say  that  the  writ  has  been  served  on  a  garnishee,  naming  the 
person  in  possession.  2 

When  the  officer  has  served  several  attachments  and  made 
levies,  in  each,  on  the  same  property,  he  should  report  in  each 
case  that  he  has  seized  that  property  under  the  writ  issued 
therein, 3  giving  the  exact  dates  of  each  seizure.  Wbere  the 
law  requires  witnesses  to  the  levy,  their  names  must  appear  in 
the  return,^  for  where  there  are  competing  attachments,  and 
where  other  evidence  than  the  marshal's  or  sheriff's  report  is 
allowable,  the  insertion  of  the  witnesses'  names  is  a  means  of 
avoiding  much  possible  contention.  In  such  case,  where  frac- 
tions of  a  day  are  noticed,  the  exact  date  of  the  levy,  even  to 
the  minute,  becomes  of  vital  importance.  If  two  attachments 
are  in  competition,  and  the  return  of  one  shows  execution  at 
noon  while  that  of  the  other  speciiies  the  same  day  but  no  hour, 
it  has  been  held  that  the  lirst  will  be  marshalled  as  the  hiirher 
in  rank.  5 

A  return  being  accurate  as  to  the  time  of  the  levy  but  indefi- 
nite as  to  that  of  the  summons,  the  presumption  has  been  made 
that  the  summons  was  served  on  the  same  day  that  tlie  property 
was  attached.  6 

It  has  been  held  that  an  attachment  should  not  be  dissolved 


may  be  served,   is  one  having  con-  Casey,  15o ;  Anderson  v.  Scott,  2  Mo. 

trolling  authority  in  respect  to  some  15;    Sterrett  v.    Howarth,  76  Pa.  St. 

department    of   corporate    business,  438. 

and  return  of  service   on  >' John   W.  ^  Violet  v.  Tyler,  3  Cr.  C.  C.  200. 

Drew,  agent  of   the  within   named  *  Cabeen   v.  Douglass,  1   Mo.  3:36; 

defendant,"  was  insufficient.  see  Morgan  v.  Johnson,  15  Tex.  508. 

1  Page  «.  Geueres,  6  La.  Ann.  551.  ^  Fairtield   v.    Paine,  23   Me.  498; 

2  Bryan   v.  Trout,  90   Pa.  St.   492;  Brainerd  v.  Bu.sliuell,  11  Ct.  16. 
Lake  Shore,  &c.,  R.  R.  Co.  v.  Hunt,  «  Talcott  v.  Rozenberg,  8  Abb.  Pr. 
39  Mich.  469;  Hayes  v.  Gillispie,  11  N.  S.  287.     In  this  ca.se,  it  seems  that 


REQUISITES    OF    THE    RETURN.  259 

because  the  sLeriff  endorsed  on  the  summons  the  date  of  its 
issue  as  tliat  of  its  service,  when,  in  fact,  the  service  was  made 
on  the  day  following.  ^ 

The  return  may  be  made  at  any  hour  of  the  return  day.^  It 
may  be  made  on  any  day  while  the  writ  is  alive,  but  not  before 
its  creation  or  after  it  has  expired.  If  the  date  of  the  writ  is 
later  than  that  of  the  officer's  return,  the  latter  is  premature 
and  therefore  void.'  If  the  return  day  has  exj^ired,  no  return 
can  be  legally  made.* 

The  return  should  be  lodged  wherev^er  the  law  of  any  State 
requires  it  to  be; — with  the  clerk  of  the  court,  or  the  register, 
or  the  prothonotarj^,  etc.,  but  the  returning  officer  is  not  obliged 
to  present  it  personally  to  the  receiving  officer.  ^ 

The  writ  is  usually  returnable  to  the  officer  who  issued  it, 
but  the  necessary  matter  is  that  it  be  returned  to  the  court;  and 
even  where  a  statute  directs  that  the  return  be  made  to  the  offi- 
cer issuing  the  wn-it,  failure  to  follow  such  direction  is  not  fatal 
to  the  attachment,  nor  does  it  impair  the  validity  of  the  return. 
Sncli  a  law  is  merely  directory.  ^ 

Sometimes  returns  are  made  by  officers  who  did  not  make 
the  levies,'  though  the  practice  is  neither  general  nor  com- 
mendable. 

When  one  is  appointed  to  serve  a  writ,  and  he  is  not  a  deputy 
sheriff  or  in  any  official  capacity  by  which  he  would  be  compe- 
tent to  render  such  duty,  he  must  show  his  authority  in  the 
return — for  the  validity  of  his  act  depends  upon  his  right  to 

the  return  did  not  show  that  the  ser-  but    must   be    sued    out    after    the 

vice  was  made  within  the  time  re-  principal  suit  as  supplemental  to  it. 

quired  by  law.    Ordinarily  the  return  Chase  v.  Hill,  13  Wis.  232.     See  Reed 

ought  to  be  sufficient  to  show  that  «.  Periiins,  14  Ala.  231. 

fact.  3  Beri-y  ^,  Spear,  13  Me.  187. 

»  Cureton  v.  Dargan,  12   S.  C.  122.  *  Russ  v.  Butterfield,  6  Cush.  242; 

2  People  V.  Wheeler,  7  Paige,  (N.  Williams  v.  Babbit,  14  Gray,  141. 

Y.)  433.     The  exception  is  made  in  ^  Kendall  v.    Irvine,  42   Me.   339 ; 

this  case,  however,  that  if  ordered  by  Bessey  ».  Vose,  73  Id.  217;  Bitter®, 

the  court  to  return  the  writ  immedi-  Scanuell,  11  Cal.  238. 

ately,  the  officer  must  do  so.     Held  ®  Rodgers  v.  Bonner,  55  Barb.  9. 

in  Wisconsin  that  under  the  practice  ^  McMeekin   v.  Johnson,  2   Dana, 

there,  a  writ  of  attachment  need  not  (Ky.)    459.      Held    void:     Onley   v. 

be  returned  at   any  particular  time,  Shepherd,  8  Blackf.  14(i. 


SCO  RETUKN    AND    PUBLICATION. 

act.*  Even  if  lie  is  an  officer,  ordinarily  empowered  to  servo 
attachment,  yet  his  right  to  serve  a  particular  attachment  nipy 
be  affected  by  interest.  2 

The  signature  of  the  officer  to  liis  return  should  always  be 
made,  for  reasons  apparent;  but  an  inadvertent  omission  of  it 
•would  not  necessarily  invalidate  the  return.  Of  course,  an 
unsigned  return  wdiich  he  never  meant  to  file,  would  be  of  no 
avail  should  the  fact  of  its  surreptitious  or  accidental  filing  be 
made  to  appear;  but  the  attachment  may  have  been  perfect, 
though  the  written  evidence  of  it  should  want  the  signature  of 
the  officer.  3 

The  deputy  may  sign,  if  he  served  the  writ,  but  the  sheriff 
is  presumed  to  act  through  him.  If  the  sheriff  has  seen  the 
return  and  allowed  it  to  be  filed,  he  cannot  recover  of  his  deputy 
if  it  prove  to  be  false. ^  There  may  be  circumstances  under 
which  he  could;  for  the  deputy  might  artfully  and  purposely 
deceive  his  principal. 

The  officer  should  show,  in  case  no  service  has  been  made, 
why  it  has  not  been  made;  as  that  the  defendant  could  not  be 
found.  He  should  show  why  it  w^as  not  left  at  the  residence  of 
the  defendant  or  at  the  place  of  his  last  residence;  as,  that  he 
has  no  residence  in  the  county  or  State.  It  is  important  when 
the  character  of  the  attachment  suit  is  to  be  determined. 
Though  the  debtor  be  not  personally  served,  there  may  be  a 
service  legally  eipiivalent  to  a  personal  one,  such  as  leaving  the 
summons  and  writ  at  his  domicile  wath  a  person  of  proper  age.^ 

Sec.  3.    Amendments. 

The  sheriff  or  marshal  has  full  control  over  his  return  before 

1  Currens  v.  RatclifFe,  9  Iowa,  309.  quirement     that    if    the    defendant 

2  Waterhouse  «.  Smith,  22  Me.  337:  cannot  be  found  in- the  county,  a 
Held,  that  if  the  officer  is  a  party,  copy  of  the  writ  must  be  left  at  his 
his  return  is  only  prima  facie  evi-  last  place  of  residence  or  the  return 
dence.  must  show  that  he  had  no  such  last 

^  Lea  ■».  Maxwell,  1  Head,  (Tenn.)  place  of  residence.   Adams  v.  Abrara, 

365;    Clymore    v.   Williams,   77  111.  38  Mich.  302;  Id.  304;  Smith  t\  Cur- 

618.  tiss,  38   Mich.  303;  Nicolls   r.  Law- 

*  Wasson  v.  Linster,  83   N.  C.  575.  rence,  30  Mich.  396;  Town  v.  Tabur, 

*  In  Michigan,  it  is  a  statute  re-  34  Mich.  2G5. 


AMENDMENTS.  201 

lie  has  had  it  filed;  and,  after  the  filing,  he  may  be  granted 
leave  to  amend  it  in  some  particulars,  such  as  adding  that  the 
thing  attached  belongs  to  the  defendant,  or  one  or  more  of 
several  defendants;^  specifying  particular  articles;^  inserting 
tliat  a  copy  of  the  attachment  was  posted  as  required ;3  sub- 
stituting the  proper  name  of  the  court  for  the  wrong  designa- 
tion,*  etc.,  but  he  cannot  be  permitted  to  make  out  evidence 
for  himself,  when  sued  for  ofRcial  wrong-doing,  by  amending 
his  return  after  it  has  been  duly  iiuide.^  Amendments  affect- 
ing jurisdiction  cannot  be  made  without  proceeding  contradic- 
torily with  the  party  to  be  affected  by  the  change, ^  To  allow 
a  total  omission  of  a  return  to  be  supplied  nunc  pro  tunc  is 
irregular,  and  would  be  generally  held  illegal,  though  it  is  not 
without  a  precedent.' 

While  slight  errors  of  inadvertence  inay  generally  be  amended, 
the  neglect  to  state  the  time  of  the  attachment,  though  it  also 
may  be  unintentional,  cannot  always  be  remedied  by  amend- 
ment. ^  The  whole  question  between  creditors  competing  for 
priority  turns  usually  upon  the  point  of  time  when  one  of  the 
attachments  was  first  executed;  and,  to  give  the  officer  the  right 
to  amend  after  ah  issue  made  between  the  competitors  would  be 
equivalent  to  giving  him  the  decision  of  the  issue. 

It  would  seem  to  be  a  correct,  general  proposition  that  an 
officer  cannot  amend  his  return  after  judgment.^  Even  during 
the  progress  of  the  trial,  if  he  wishes  to  amend  an  erroneous 
return,  there  must  be  a  proper  proceeding  and  showing  before 
he  can  exercise  his  right  to  do  so.  ^  ** 

»  Mason  v.  Anderson,  3  T.  B.  Men-  '  Bancroft  v.  Sinclair,  13  Rich.  617. 

roe,  293 ;  Anderson  o.  Scott,  3  Mo.  15;  «  Taylor  ».  Emery,  16  N.  H.  359. 

Bank  of  North   West  «.   Taylor,  IG  »  But   in  Odom   v.  Sliackelford,  44 

Wis.  609.  Ala.  331,  it  was  held  that  the  sheriff's 

2  Baxter  «.  Rice,  21  Pick.  197.  return  of  an  attachment  sued  out  by 

3  Wilson  «.  Ray,  T.  U.  P.  Charlt.  the  landlord  against  the  crop  of  his 
(Ga.)  109.  tenant  may  be  amended  after  judg- 

*  Covington  v.  Cothran,  35  Ga.  156 ;  ment  so   as  to  show  that  the  crop 

Norvell  t.  Porter,  62  Mo.  309.  levied  on   had   been  grown  on  the 

5  Haynes  v.  Knowles,  36  Mich.  407.  rented  laud. 

6  Id.      Montgomery  i).  Mej'rill,  36  ^o  Sanford  «.  Pond,  37  Ct.  588. 
Mich.  97. 


262  RETURN    AND    PUBLICATION. 

Slight  aiul  unimportant  omissions  which  may  be  rca(lil_Y  sup- 
plied by  the  sense  generally  conveyed,  will  not  vitiate  a  return. 
!Nor  will  the  insertion  of  superfluous  verbiage.  ^ 

A  return  may  have  erroneous  words  corrected,  and  omissions 
supplied,  upon  reasonable  presumption.  In  the  a!)sence  of  proof 
to  the  contrary,  the  officer  will  be  presumed  to  have  done  his 
duty,  in  matters  for  the  return  of  which  there  is  no  prescribed 
form. 3  When  goods  are  reported  as  attached,  with  an  omis- 
sion of  the  value,  the  presumption  that  they  are  sufficient  to 
meet  the  demand  has  been  made.^ 

Where  details  are  not  statutorily  exacted,  an  officer  may 
return  that  he  has  attached  certain,  described  property  at  a  cer- 
tain time,  in  conformity  to  the  writ;  and  such  statement  is 
deemed  equivalent  to  a  return  of  all  the  facts  done  which  are 
required  to  constitute  a  valid  attachment;  and,  in  the  absence 
of  fraud,  it  is  sufficient,  and  conclusive  of  the  fact  of  the  attach- 
ment ;4  but  wdiatever  details  a  statute  exacts  should  be  stated  and 
not  left  to  be  presumed.  The  general  return  "duly  made,  etc.," 
is  presumably  correct,  but  it  may  be  controverted.  ^  Keason- 
able  intendments  are  made  in  favor  of  an  officer's  return.  ^ 

The  presumption  that  an  attaching  officer  has  done  his  duty, 
will  not  avail  to  overcome  the  omission  of  essential  facts;  nor 
can  unintelligible  statements  be  supplied  by  conjecture. ''  There 
is  another  presumption  that  may  be  invoked  against  an  officer 

1  Land  returned  as  "  supposed  "  to  sumption,  when  the  officer  had  re- 
helon.e  to  the  defeadant  was  deemed  turned  that  he  had  posted  it  on  the 
sufficiently  designated  as  to  owner-  premises.  In  Redus  v.  AVofiard,  12 
ship  when  the  fact  was  that  he  owned  Miss.  (4  S.  &  M.)  579,  "executed" 
it.  Bannister  v.  Higginson,  14  Me.  was  presumed  to  mean  regularly  ex- 
73.     Statiug  that  ihe  attacnment  was  ecuted  in  legal  form. 

made  "at  the  risk  of  the  plaintitf,"  i«  ^  Childs  v.  Ham,  23  Me.  74. 

mere    surplusage,   and   of  no   legal  *  Lathrop  v.   Blake,   ^3   N.    H.  (3 

effect  in  protecting  the  officer.  Love-  Fost.)  46;  Prather  y.  Chase,  3  Brews, 

joy  V.  Hutchins,  23  Me.  272.  (Pa  )  206. 

2  Miller  c.  Fay,  40  Wis.  633 ;  Lewis  &  Porter  v.  Pico,  55  Cal.  165 ;  Ander- 
V.  Quinker,  2  Met.  (Ky.)  284:  Omis-  son  v.  Graff,  41  Md.  601;  Crisman  v. 
sion  to  state  that  a  copy  of  the  attach-  Swisher,  4  Dutch.  149;  Baldwin  «. 
ment  was  posted  in  a   "conspicuous  Conger,  9  Sm.  <&  M.  516. 

place"   on  a  lot  seized,  (there  being  ^  Drake  v.  Mooney,  31  Vt.  619. 

no  tenant  upon   whom   to   serve   the  '' Hathaway  v.   Larrabee,   27    Me. 

writ,)  was  held  cured  by  such   pre-      449. 


AMENDMENTS.  2G3 

who  has  made  an  inadequate  statement  of  the  facts  attending 
tlie  levy;  the  presumption  that  he  lias  stated  all  the  facts.  It 
is  his  duty  to  indorse  upon  the  writ  what  he  did,  in  serving  it; 
and  he  will  be  presumed  to  have  done  so.'  Important  facts 
thus  omitted  cannot  be  assumed  to  have  occurred. 

Errors  or  omissions  in  a  return,  which  the  affidavit  or  other 
part  of  the  record  fully  cures,  (when  not  violative  of  some 
statute  requirement,)  ought  not  to  militate  against  the  plaintiff 
60  far  as  to  defeat  the  atLachment.^ 

Even  though  the  officer  may  not  have  actually  seized  the 
goods  of  a  third  person  by  any  manipulation  or  disturbance  of 
them,  putting  a  keeper  over  them,  or  exercising  any  act  of 
possession  whatever  in  regard  to  them,  yet  if  he  makes  a  return 
upon  the  writ  that  he  has  seized  them,  the  real  owner  may  be 
injured  in  his  credit,  put  to  trouble  and  expense  b}^  the  wrong- 
ful return,  or  otherwise  injured,  so  as  to  have  a  right  of  action 
against  the  officer;  he  may  have  such  right  though  there  has 
been  no  tortuous  taking.  ^ 

So,  the  attaching  creditor  may  be  injured  by  the  action  ov 
non-action  of  the  officer;  and,  in  a  suit  by  him  for  i^epair  of  the 
wrong,  the  return  in  the  attachment  suit  is  conclusive  upon  the 
sheriff  and  his  representatives.'*  If,  howevei*,  the  I'eturn  should 
contain  the  statement  that  the  attachment  was  made  under  thf 
instructions  and  "at  the  risk  of  the  plaintiff,"  that  would  not 
be  conclusive  against  the  latter,  because  such  assertion  is  not 
required  by  law  and  therefore  forms  no  proper  part  of  the  offi- 
cial   paper,    the    officer  cannot    thus    make    incontrovertible 


'Sharp  «.   Baird,   43  Cal.   577,  in  73;  Miller  ®.  Fay,  40  Wis.  633;  Love- 

which  the   levy  was  held    invalid,  lady  v.  Harkins,  6  Smedes  &  M.  413; 

since  the  writ  did  not  state  an  essen-  Clauton  v.  Laird,  12  Id.  568. 
tial  fact.     Instead  of  presumin,£;  that  *Gibbs  v.    Chase,    10    Mass.   128; 

the   sheriff  had   done   his  duty,  the  Marston  v.  Baldwin,  17    Mass.   606; 

court  assumed  that  no  copy  of  the  Morse  ».  Hurd,  17  N.  H.  246;  Paxton 

attachment  had  been  posted  as  re-  v.   Steckel,   3   Pa.   St.   93;  Miller  v. 

quired  because  not  set  forth  in  the  Baker,  1    Met.  27.     See   Galloway  v. 

return;  and,  under   the   circurastan-  Bird,  4  Bing.  299;  Meany  ■«.  Head,  1 

ces  of  that  case,  it  could  hardly  have  Mason,  319;  Pangburn  v.   Patridge, 

held  otherwise.  7  Johns.  140. 

*  Slate  V.  Peuner,  27  Minn.  269. 


2Q4: 


RETURN    AND    PUBLICATION. 


evidence  for  liiraself  to  be  used  in  case  of  a  suit  ai^ainst  him; 
but  theyact  that  the  phiintiif  instructed  him  and  took  the  risk 
of  the  attachment,  when  propoi'ly  proved  at  the  ]'ii;ht  time, 
woukl  sl)iehl  the  oflicer  from  a  suit  by  the  phiintiii";  and  enai)le 
him  to  recover  of  the  plaintiff  in  case  damages  should  be 
awarded  in  a  suit  by  third  persons  against  such  otHcer.^ 

The  general  rule  is  that  a  sheriff's  return,  u])(ni  attachment 
and  similar  writs,  cannot  be  contradicted  by  parol  evidence. 
And  ordinarily  it  cannot  be  thus  extended  or  explained.  If 
the  return  is  false  and  injurious,  the  injured  party  has  his 
remedy  by  action  against  the  officer  for  a  false  return,  Imt  the 
court  will  receive  the  official  report  in  the  case  in  which  it  is 
made,  as  purporting  absolute  verity. ^  The  officer  has  entire 
control  over  the  return  until  it  has  been  liled;  the  court  cannot 
dictate  to  him  what  facts  to  report;  and,  after  the  tiling  neither 
the  ofiicer  at  his  own  volition,  nor  the  court,  by  directing  the 
officer,  can  make  any  change  that  would  affect  the  vested  right 
of  any  party.  Tlie  officer  himself  must  abide  his  acti(.)n, 
though  to  his  injury,^  unless  he  have  leave  of  court  to  amend. 

'ihe  inviolability  of  the  return  is  coiitined  to  itself  as  an  offi- 
cial document.  The  facts  which  it  states  may  be  controverted 
as  facts  stated  by  one  of  the  parties  but  not  as  constituting  the 


1  Lovejoy  v.  Hutchins,  23  Me.  273; 
Le.sher  «.  Getman,  30  Minn.  321; 
Nelson  v.  Cook,  17  111.443;  Gower  «. 
Emery,  18  Me.  79 ;  Sanders  v.  Hamil- 
ton,  3  Dana,  (Ky.)  550;  Humphreys 
«.  Pratt,  2  Dow  &  Clark,  288. 

2  Kendall  v.  White,  1  Shep.  245; 
Hayues  v.  Small,  9  Id.  14;  Baker  v. 
McDuffle,  23  Wend.  289;  Denny  «. 
Willard.  11  Pick.  519;  McBee  v.  The 
State,  1  Meigs,  122 ;  Brown  v.  Davis, 
9  N  H.  70 ;  Chadbourne  v.  Sumner, 
16  Id.  129;  Sawyer  v.  Curtis,  2  Ash- 
mead,  127;  French  v.  Stanley,  21  Me. 
512 ,  Mentz  v.  Hamnian,  5  Whart.  150; 
Haynes  v.  Sniall,  22  Me.  14;  Sample 
1).  Coulson,  9  Watts  &  Serg.  62;  Pax- 
ton  V.  Steckel,  2  Pa.  St.  93 ;  Clarke  v. 
Gary,  11  Ala.  98;  Rowell  v.  Klein,  44 


Ind.  290;  Splalin  v.  Gillespie,  48  Ind. 
397. 

3  Haynes  v.  Small,  22  ]\Ie.  14 ;  Saw- 
yer  v.  Curtis,  3  Ashmead,  137.  AVhen 
the  officer  returned  that  he  had  left 
a  copy  of  the  attachment  writ,  etc., 
at  the  defendant's  place  of  abode, 
the  return  was  held  to  be  open  to 
contradiction.  Buckingham  «.  Os- 
bo]'ne,  44  Ct.  133.  So  also  when  he 
returned  that  he  h;id  made  the  re- 
quired certificate  to  the  registry  of 
deeds.  Dutton  v.  Simmons,  65  Me. 
583.  Sheriff  may  prove  facts  dehors 
their  returns,  when  not  inconsistent 
therewith:  Pierce  v.  Strickland,  2 
Story,  292;  Evans  v.  Davis,  3  B.  Mon. 
344;  Williams  v.  Cheesebrough,  4  Ct. 
356 ;  Denton  v.  Livingston,9  Johns.  90. 


GARNISHMENT    EETUIIN.  265 

return.  For  illustration:  the  sheriff  may  report  that  he  has 
attaclied  a  farm  as  the  property  of  the  defendant,  or  that  the 
farm  wliich  he  lias  attached  is  the  property  of  the  defendant. 
This  cainiot  be  contradicted;  that  is  the  fact  that  he  has  so 
attached  it  cannot  he.  But  an  intervener  may  interplead  and 
allege  that  the  property  attached  belongs  to  him  and  not  to  the 
defendant.  Of  coarse  the  return  cannot  possibly  preclude 
parties  from  asserting  facts  just  the  opposite  of  what  it  may  have 
stated,  yet  this  would  not  be  what  is  meant  by  contradicting  the 
return.  A  purchaser  at  a  sale  is  not  protected  by  the  sheriff's 
return  that  the  attached  property  belonged  to  the  defendant,  if 
the  records  show  that  it  did  not,  and  it  therefore  was  not  the 
res.'^ 

Sec.  4.    Garnisliinent  Return. 

The  garnishee  has  no  right  to  waive  service.  ^  He  has  no 
right  to  thus  aid  the  plaintiff  to  the  prejudice  of  the  defendant, 
his  own  creditor  or  principal  as  the  case  may  be.  His  interest 
should  deter  him  from  the  voluntary  acceptance  of  service, 
since  he  might  afterwards  be  precluded  from  setting  up  the  pay- 
ment of  the  debt  under  judicial  order  in  the  attachment  pro- 
ceeding, should  his  own  creditor  afterwards  sue  him  for  the 
same  debt.  However,  should  he  waive  service,  and  voluntarily 
appeal'  in  court  and  answer,  the  garnishment  would  hold  good 
against  himself. ^  It  would  also  hold  good,  in  case  he  acknowl- 
edged indebtedness  to  the  defendant,  or  possession  of  his 
property,  for  all  the  purposes  of  the  garnishment  so  far  as  the 

iMeri-itt    v.    Miller,   13  Vt.  416;  son,  5  Randolph,  596. 

Fullam  v.   Stearns,  30  Id.  444;  Rob-  ^  pj^gipg  ^  Boughton,  27  La.  Ann. 

ertson    -u.   Kinkliead,  26    Wis.   500;  593,  Epstein  «.  Salorgne,  6  Mo.  App. 

Repine  v.  McPlierson,  2  Kan.   340:  353;    Hebel  v.  Amazon  Ins    Co    33 

Pelton    V.   Plainer,    13    Ohio,    209;  Mich  400      But   it  was  held  that  he 

Tiflany  «.  Glover,  3  G.  Greene,  387;  may.    when   no   rights   of   opposing 

Banuister  v.   Higginson,  15   Me.  73;  creditors  are   involved:  Freeman  v. 

Lincoln  v.   Strickland,   51    Id    321.  Miller,  51  Tex  443. 

Bacon     v.    Leonard,    4    Pick     377;  '*  National  Bank  of    Commerce  «. 

Anderson  v.  Scott,  2  Mo  15,  Masons.  Titsworth,  73  111.  591. 
Anderson,  3  Hon.  294;  Clay  v.  Neil- 


266  KETURN    AND    PUBLICATION. 

plaintifT  is  concerned,  and  so  far  as  the  defendant  should  be 
adjudged  indebted. 

Mere  irregularities  of  service  are  waived  by  the  answer, i 
and  such  waiver  would  not  subsequently  prejudice  the  garnishee 
in  any  action  by  the  defendant  against  him,  since  he  is  not 
bound  to  except  or  demur  to  such  service;  he  is  only  bound 
to  do  what  good  faith  towards  his  immediate  creditor 
requires. 

In  some  matters  the  law  treats  a  day  as  a  whole  and  disre- 
gards its  subdivision  into  hours.  Under  the  rule  that  the  law 
makes  no  fractions  of  a  day,  a  voter  who  is  twenty-one  years 
old  at  sunset  on  election  day  may  vote  as  soon  as  the  polls  are 
open  on  the  morning  of  that  day.  But  where  there  is  reason 
for  notino-  subdivisions  the  law  notes  them.  There  is  reason 
that  the  garnishee  should  be  first  answerable  to  the  first  interro- 
gator, though  addressed  but  a  minute  before  the  second  plies 
his  questions. 2  And  the  garnishee  will  be  adjudged  to  deliver 
the  goods  which  he  holds,  or  pay  the  debt  whicli  he  acknowl- 
edges, not  to  the  attaching  creditor  who  first  obtains  judgment, 
but  to  the  one  who  first  serves  him  with  summons  and  interro- 
gatories who  may  afterwards  obtain  judgment. ^ 

The  importance  of  stating  the  hour  and  minute  of  service  is 
seen  when  creditors  are  competing  for  rank.  A  slierifi'  may 
amend  his  return,  provided  no  acquired  rights  would  be  thereby 
afiected.  Parol  evidence  has  been  admitted  to  show  the  exact 
liour  or  minute  of  service,  when  the  return  merely  stated  the 
day  This  is  not  contradictory  of  the  return.  As  a  general 
rule,  a  slierifi''s  or  marshal's  return  canno'-   thus  be   eked    out. 

It  is  possible  that  the  garnishee  may  fail  to  get  a  summons 
left  for  him  at  his  residence,  or  fail  to  understand  one  read  to 
him  by  way  of  service,  or  may  otherwise  receive  summons  with- 
out really  knowing  it.  Under  such  circumstances,  should  the 
sheriif  make  return  that  he  had  summoned  the  garnishee,  and 
thereafter  the    case   go  on    to    judgment,    it    seems    that    the 

1  Moody  V.  Alter,  12  Heisk.  143.  Pa.  St.  483. 

2  lu  Pennsylvania,  the  law  makes  ^  Tufts  v.  Carracline,  3  La.  430. 
DO  fractions  of  a  day,  with  respect  to  Contra:  Yelverlon  v.  Burton,  26  Pa. 
garnishments.     Baldwin's  Appeal,  86  St.  351. 


GAKNISIIMENT   RETURN.  2G7 

garnisliee  who  has  ignorajitly  and  innocently  paid  to  the  defend- 
ant meanwhile,  will  still  be  bound  to  the  plaintiff". ^ 

The  return  should  show  whether  the  summons  and  interro^ii'- 
atories  have  been  served  on  the  person  to  whom  they  were 
directed.  If  the  garnishee  is  a  corporation,  the  return  should 
show  upon  what  officer  or  agent  the  service  was  made.^  This  is 
important,  if  the  validity  of  the  service  is  brought  into  question. 

What  property  or  credit  is  attached  by  the  service  cannot  be 
shown  or  described  in  the  return,  except  in  States  where  the 
garnishee  gives  a  certilicate  to  the  sheriif  disclosing  what 
attachable  property  he  holds,  or  what  debts  he  owes  to  the 
defendant.    Whatever  is  definitely  attached  should  be  returned. 3 

The  time  of  the  service  should  be  specified;  even  particii- 
larity  to  the  minute  inay  be  important  where  there  are  compet- 
ing creditors,  each  seeking  priority.  The  reason  is,  that  the 
service  fixes  the  date  of  the  attachment  if  it  should  afterwards 
appear,  by  the  garnishee's  answer  or  otherwise,  that  he  then 
held  property  or  credits  belonging  to  the  defendant.^ 

Wliile  a  judgment  against  a  garnishee  would  be  void,  if 
notice  neither  by  service  nor  publication  had  been  given  to  the 
attachment-defendant, 5  ^unless  waived,  or  rendered  unneces- 
sary by  appearance,)^  yet  the  process  of  garnishment  may  be 
served  upon  the  garnishee  he/ore  the  notice  is  made  upon  such 
defendant,  when  the  latter  can  only  be  reached  by  publication, 
for  the  garnishment  is  really  a  proceeding  m  rem  against  the 
property  in  the  hands  of  the  garnishee.'      The  logical  order  in 

1  Hite    V.    Fisher,    76     Ind.    231;      ing  House,  6  Mo.  App.  599,)  this  rea- 
Cleneay«.  The  Junction  R.  R.  Co.  36      son  would  be  inapplicable. 

Ind.  375;  Ryan  v.  Burkham,  42  Ind.  ^  Hinds  v.  Miller,  52  Miss.  845. 

507;    Rowell  r.  Klein,  44   Ind.    290;  ^  Everdell  7x  Sheboygan    &c.  R.  R. 

Splalin  V.  Gillespie,  48  Ind.  397.  Co.  41  Wis.  395. 

2  Northern  Central  R.  R.  v.  Rider,  ''  It  was  held   in   Iowa  that  in   a 
45  Md.  24.  proceeding  by  garnishment,   process 

^  Fenglin  t\  Cairo   &   St.   Louis  R.  maybe   served    upon  the  garnishee 

R.  Co.  6  j\Io.  App.  580.     See  Norvell  without  notice  to  the   principal   de- 

?j.  Porter, G2  Mo.  309.  fendant.      Phillips    v.    Geimon,     43 

*  In  Missouri,  where  it  is  held  tliat  Iowa,     iOl.       No    judgment     could 

the  service  of  summons  has  not  the  legally  follow  without  notice   to   the 

effect   of  attaching  a  credit   in    tlie  principal  defendant,  actual   or    con- 

garuishee's  hands,  (Mosher  v.  Bank-  structive. 


268  RETURN    AND    PUBLICATION. 

fin  action  directly  against  property  is  to  seize  it  first  and  notify 
interested  parties  afterwards. 

Sec.  5.    Publication  Notice. 

"When  tlie  sheriff  makes  return  that  the  debtor  to  whom  sum- 
mons was  addressed  cannot  be  found,  the  court  issues  an  order 
for  constructive  notice  by  publication. ^  The  order,  the  compli- 
ance with  it,  and  the  return  must  all  conform  to  the  governing 
statute.  Wliere  the  statute  designates  no  form  for  the  order 
but  merely  prescribes  that  an  order  of  publication  be 
made,  the  court  will  fashion  its  own  form.  The  sub- 
stantial thing  for  the  order  to  contain  is  that  such  notice  be 
given  to  the  defendant  named  in  the  plaintiff's  petition  as  will 
inform  him  that  the  suit  is  pending  against  him,  and  that  prop- 
erty of  his  is  seized  or  about  to  be,  so  that  he  may  have  knowl- 
edge of  it  and  his  opportunity  to  defend  and.  to  have  his  day 
in  court. 

Such  order  may  be  published  as  the  notice,  if  it  is  full 
enough  to  convey  notice,  and  is  addressed  to  the  defendant  by 
the  sheriff.  The  form  of  the  notice,  written  out  by  the  sheriif, 
must  be  in  comjjliance  with  the  judge's  order,  and  with  the 
statute.  Where  no  special  form  of  words  is  prescribed  by 
statute,  it  will  be  sufficient  if  the  defendant  is  addressed 
through  the  notice,  and  told  of  the  suit  pending  against  him, 
of  the  attachment  of  his  property  or  the  order  for  its  attach- 
ment and  of  the  time  within  which  he  must  appear,  the  court, 
the  name  of  the  plaintift",  the  demand,  the  grounds,  etc. 

It  cannot  be  laid  down,  as  a  genei'al  rule,  that  the  notice 
must  describe  the  property  attached,  as  in  case  of  proceedings 
against  a  thing,  with  general  notice,  in  vindication  of  a  jus  in 
re,  when  only  the  thing  is  impleaded,  and  when  the  notice  is 
addressed  to  all  persons   alike;  for,  in   attachment  proceedings, 

1  The  order  to  make  publication  is  Marsliall,  75  Mo.  327.  Affidavit  may- 
granted  on  the  application  of  the  be  made  by  an  attorney :  Weaver  v. 
plaintift'.  If  the  original  affidavit  Roberts,  84  N.  C.  493.  It  must  show 
contains  all  that  is  necessary,  no  that  defendant  cannot  be  found  in 
further  oath    is  required.     Bray  v.  the  State:  Faulk  «.  Smith,  Id.  501. 


rUBLICATION    NOTICE.  200 

which  are  personal  in  form,  tlie  notice  is  given  to  the  person  or 
persons  named  in  the  petition  as  tlie  defendant,  tliat  he  may 
make  appearance,  and  have  tlie  suit  go  on  mainly  as  a  personal 
one,  and  thus  render  particular  description  unnecessary.  But 
sometimes  thei'e  may  be  the  reason  for  absence  of  description, 
that  the  notice  is  publislied  when  summons  has  failed  to  be 
served,  and,  when  nothing  already  may  have  been  attached. 
All  that  the  absent  debtor  can  be  told,  in  such  case,  is  that 
property  of  his  is  to  be  attached. i  When  it  is  already  attached, 
(which  is  usually  required  before  publication,)  its  brief  descrip- 
tion in  the  advertisement  would  not  only  be  proper  but  highly 
commendable,  even  where  the  statute  does  not  require  it.^ 

When  the  law  merely  requires  notice  of  the  suit  to  be  given 
to  the  defendant,  without  any  further  statutory  direction,  it  is 
still  necessary  that  the  notice  should  show  all  that  is  requisite 
to  enable  the  defendant  to  know  who  is  sueing  and  on  what 
demand ;  to  know  that  his  property  is  attached  or  to  be  attached, 
and  to  know  within  what  time  he  is  required  to  make  appear- 
ance. 

The  publication  ought  to  be  as  full  as  the  unserved  writ  and 
summons,  at  least;  it  ought  to  convey  to  the  defendant  as  much 
knowledge  of  what  is  being  done  against  him  and  his  property 
as  he  would  have  if  within  the  jurisdiction  and  there  served 
with  the  writ  and  summons.  Wherever,  in  whatever  part  of 
the  world,  the  publication  may  strike  his  eye,  he  ought  to  be 
made  as  fully  acquainted  with  the  suit  as  he  would  be  if  within 
hearing  of  a  proclamation  calling  him  to  court.  ^  And  the 
publication  must  describe  the  property  attached  when  the 
statute  expressly  or  impliedly  requires  it.^ 

Summons  is  a  command:  publication  notice  is  an  invitation; 

1  Harris  v.  Grodner,  42  Mo.  159.  sale  of  property  attached.     Rapp  v. 

2  Not  required  as  to  personal  prop-      Kyle,  26  Kan.  89. 

erty,  in  Kansas:  Beckwith  v.  Doug-  *  Wescott  t\  Archer,  12  Neb.  345: 

las,  25  Kan.   229;  Race  v.   Maloney,  "When  attachment  is  levied  on  the 

21  Kan.  31.  land  of  a  non-resident  and  summons 

*  Gilliland  c.  Cullem,  6  Lea,  (Tenn.)  is  not  made  on  him,   the  court  pos- 

621.    Publication   is  not  fatally   de-  sesses  no  power  to  render  judgment 

fective  for  failing  to  state  specifically  against  him  and  to  order  the  sale  of 

that  an  order  will  be  entered  for  the  his  property  to  satisfy  the  same,  uu- 


270  EETUKN    AND    PUBLICATION. 

summons  brings  the  defendant  nnder  the  jurisdiction  of  tlie 
court:  publication  offers  him  the  opportunity  of  voluntarily 
coming  under  it;  summons  is  itself  a  writ:  publication  is  a 
printed  proclamation;  summons  gives  jurisdiction  over  the 
jjerson  and  completes  it  over  attached  property:  publication 
completes  jurisdiction  over  the  attached  property  but  gives  none 
over  the  person  of  the  debtor,  as  will  be  shown  in  the  chapter 
on  jurisdiction. 

ISTotice  by  publication  is  not  eonsiructive  service.  Notwith- 
standing loose  expressions  in  statutes  concerning  "  service  of 
process  by  publication,"  and  nnguarded  statements  of  courts 
and  commentators,  it  is  evident  that  no  one  can  be  served  so  as 
to  render  him  personally  amenable  to  the  court  and  liable  to  a 
personal  judgment  by  a  mere  invitation  to  appear,  claim  and 
defend,  published  in  the  newspapers.  Constructive  service — 
such  as  leavin cr  the  summons  at  the  domicile  of  the  defendant 
with  an  inmate  of  competent  age  to  receive  it, — is  as  good  in 
law  as  actual,  personal  service,  and  the  summoned  party  can 
disregard  it  only  at  his  peril.  Such  constructive  service  upon 
a  witness  or  a  juror  would  be  sufficient  basis  for  a  subsequent 
attachment  of  his  body,  should  he  treat  it  with  contumacy  and 
contempt.  Such  a  constructive  service  would  authorize  a  per- 
sonal judgment  against  a  defendant  who  should  commit  default, 
whether  any  property  was  attached  or. not.  No  such  results 
follow  publication  notice.  No  such  results  can  follow  it,  though 
the  statute  should  use  the  term  "constructive  service,"  meaning 
merely  notice  by  publication  when  effort  to  make  any  service 
at  all,  actual  or  constructive,  has  failed.  To  treat  such  notice 
as  service  is  contrary  to  the  common  law.^ 

Those  who  think  service  may  be  effected  by  publication  find 
difficulty  when  the  defendant  is  beyond  the  territorial  jurisdic- 
tion; but  no  obstacle  is  encountered  for  that  reason  when  the 
publication  is  merely  to  notify  the  owner  of  attached  property 

less  publication  has  been  made   as  and  Paine  ■«.  Mooreland,  15  Ohio,  435, 

required    by   law,    and    the    notice  is  sharply  and  justly  criticised, 
should  contain  a  description   of  tlie  i  Boyland  «.  Boyland,   18   111.  553; 

property     attached."     Anderson    v.  Hallett  ■».  Righters,  IS   How.  Pr.  43; 

Coburu,  27  AVis.   558,    is   approved,  Brownfleld  v.  Dyer,  7  Bush,  505. 


PUBLICATION    NOTICE.  271 

that  lie  may  have  an  opportunity  to  appear  voluntarily.  'No 
rule  of  the  coinmou  law  is  violated,  in  letter  or  in  spirit,  by 
such  information  given  to  one  beyond  the  territorial  jurisdic- 
tion or  secreted  within  it  so  as  not  to  be  persoiuilly  found  and 
served,  or  without  domicile  within  it  so  as  to  be  constructively 
served  with  summons.^ 

In  the  prevalent  system  of  attachment  now  practiced  in  this 
country,  the  suit  is  not  against  any  person  when  no  person  is 
served  or  is  in  court  without  service;  it  is  in  rem,  and  opportu- 
nity miist  be  given  to  him  whose  interest  is  sought  to  be  divested 
by  the  judgment,  ur  the  whole  proceeding  is  a  nullity.  Cases 
seemingly  to  the  contrary  will  be  found; — those  in  which  attach- 
ment was  to  compel  appearance  by  distraint  —  not  a  suit  to 
create  a  Hen  and  mature  it  by  judgment  iinal  and  retroactive; 
or  they  will  be  fcnmd  grounded  in  error  superinduced  by  the 
common  failure  to  distinguish  between  the  two  widely  different 
theories  of  attachment. 2 

When  the  attachment  suit,  though  nominally  in  personam 
is  eifectually  in  rem,  and  summons  has  been  returned  unserved, 
the  publication  of  notice  is  required  by  the  statutes  establish- 
ing the  present  prevailing  system  of  attachment;  and  the  fact, 
that  statutes  require  it,  removes  the  presumption  that  there  is 
notice  by  seizure.  Kotice  must  be  given,  since  it  is  statutory. 
Silence  in  the  statute  on  the  subject  would  not  authorize  pro- 
cedure without  it; 3  it  would  not  justify  the  presumption  that 
seizure  gave  notice,  because  the  extraordinary  procedure  by 
which  a  lien  is  ci'eated  to  secure  an  ordinary  debt  has  no  favor 
beyond  what  it  derives  from  statutory  conferment. 

If  an  absent  and  non-resident  debtor  could  be  constructively 

^  Hahn  v.  Kelly,  24  Cal.  417.  qnently  cited  to  support.     Paine  v. 

2  Beech  v.  Abbott,  G  Vt.  586  was  a  Mooreland,    15    Ohio,    435,   teaches 

case  conceriiing  cattle  that  had  beea  that   jurisdiction    may  be   obtained 

attached   to    compel    the    owner   to  without  either  service  or  notice,  but 

appear    and    give    bail  conditioned  it  contains  its  refutation  within   it- 

that  he  would  defend  the  suit.    Wil-  self. 

liams  V.  Stewart,  3  Wis.  773  and  Mat-  ^  HoUingsworth  v.  Barbour,  4  Pet 

ter  of  Clark,  3  Denio,  167  do  not  sus-  466. 
tain  the  doctrine  that   they  are  fre- 


272  RETURN    AND    PUBLICATION. 

served  by  piil)li  nation,  judgment  could  be  rendered  against  liim 
personally  whether  any  tiling  was  attached  or  not:  but  he  can- 
not have  judgment  against  him  personally  under  such  circum- 
stances, ^  because  publication  is  not  constructive  service. 

The  notice  must  not  only  be  published  as  often  as  required, 
and  in  as  many  newspapers  as  are  designated  in  the  statute, 
and  in  the  particular  ones  named  in  the  order,  if  any  are  named, 
but,  to  comply  with  the  spirit  of  the  law,  those  who  have  the 
direction  of  the  publication,  (whether  the  judge  or  the  sheriff,) 
should  select  the  most  widely  read  journals  so  that  the  defend- 
ant may  have  the  best  chance  possible  of  seeing  the  advertise- 
ment and  of  really  obtaining  notice  of  the  suit.  Sometimes 
"papers  having  the  greatest  circulation"  are  designated  in  the 
statute;  but,  when  they  are  not,  the  spirit  of  the  law  should 
oblige  the  judicial  or  executive  officer,  C(»n trolling  the  selection, 
to  give  the  defendant  the  best  opportunity  possible  for  having 
his  day  in  court.  2 

It  will  not  do  to  avoid  the  publication  and  depend  upon 
seizure  as  notice.  It  is  true  that  it  has  often  been  said  that 
seizure  is  notice;  and,  under  the  presumption  that  every  owner 
knows  when  his  property  is  in  the  adverse  possession  of  another, 
the  taking  of  it  from  an  owner  may  be,  in  a  certain  sense, 
notice  to  him  of  the  taking.  The  presumption  has  been  repeat- 
edly invoked,  in  libel  causes  against  property  and  other  pro- 
ceedings in  rem  irrespective  of  personal  owners,  in  which  the 
property  only  is  impleaded.  ^ 

iPennoyerv.  Neff,  95  U.   S.  731,      Lane  w.  Shears,  1  Wend.   433;  Keat- 
4.  ing  V.  Spink,  3  Ohio  St.  114;  Thomp- 


ro 


2  Brewer  v.  Springfield,  97  Mass.  152 
Sheldon  v.  Wright,  5  N.  Y.  497 
Soule  V.  Chase,  1  Rob.  (N.  Y.)  223 
Beecher  v.  Stephens,  25  Minn.  14G 
Cincinnati  v.  Bickett,  2G  Ohio  St.  49 


son  V.  Steamboat  Morton,  2  Ohio  St. 
30;  Stewart  D.  Board,  etc.,  25  Miss. 
479;  New  Orleans,  etc.  v.  Hemphill, 
35  Miss.  24;  Scott  v.  Shearman,  2 
Wm.  Black.  977;  Bradstreet  v.  The 


Kerr  v.  Hitt,   75  111.  51;  Kellogg®.  Neptune  Ins.    Co.,  3   Sumner,  609; 

Carrico,  47  Mo.  157.  Schooner    Bolina  &    Cargo,  1    Gall. 

3  The  Mary,  9  Cr.    126,    144;  Cross  79;  Story's  Conflict  of  Laws,  §  549; 

©.United  States,  1  Gall.  28;  Rollings-  I  Phillips  on  Ev.  pp.  156,  198;  II,  p. 

worth  V.  Barbour,   4  Pet.  475;    Bos-  289  and  298,  note.     Greenleaf  on  Ev. 

well's   Lessee  v.  Otis,  9   How.  336;  §38. 
Nations  v.   Johnson,   24  How.    205; 


PUBLICATION    NOTICE.  ZiO 

The  attachment  statutes,  however,  with  great  unanimity, 
(except  in  some,  where  foreign  attachment  is  distinguished,) 
require  that  notices  to  alleged  debtors  be  addressed  to  them 
through  the  newspapers,  when  summons  has  failed  to  reach 
them.  Such  requirement  is  not  observed  by  the  act  of  attach- 
ing. It  is  the  written  and  printed  and  published  address  to  tlie 
person  concerned  which  the  statute  requires.  And,  since  the 
jentire  remedy  by  attachment  looks  to  statutory  enactment  for 
its  ri^ht  to  be,  no  other  constructive  notice  can  be  substituted 
for  the  publication.  No  number  of  decisions,  showing  that 
seizui'e,  in  a  different  class  of  cases,  has  been  deemed  notice, 
will  justify  its  substitute  for  publication  in  an  attachment  case, 
where  the  law  requires  that  the  defendant  be  notified,  and 
usually  designates  that  such  notice  shall  be  by  publication  in 
one  newspaper  or  more. 

Seizure,  considered  as  notice,  is,  at  best,  only  presumptive 
notice,  while  the  statutes,  in  providing  for  advertisement  upon 
failui-e  of  summons,  do  not  regard  such  presumption.  Attach- 
ment laws  do  not  regard  seizure  as  any  notice  at  all.  They 
mean  what  they  say  when  they  ordain  that  something  shall  be 
published,  and  in  a  newspaper,  and  in  a  widely-read  newspaper; 
and  that  that  something  shall  let  the  charged  debtor  know  that 
liis  property  should  be  looked  after. 

Whether  or  not  a  publication  is  sufficient  to  complete  juris- 
diction over  property,  in  any  case,  depends  upon  its  substantial 
compliance  with  the  statute  and  its  giving  the  debtor  such 
notice  and  warning  that  he  may  know  that  he  is  sued,  his 
property  exposed  to  a  writ  of  attachment  and  his  presence 
required  in  court  on  or  before  a  specified  time.  If  the  substan- 
tial appear,  the  court  will  not  disregard  a  jiublication  or  the 
return  thereon  because  of  unimportant  omissions  and  slight 
variances,  and  superfluous  additions.  The  rule  respecting 
variances,  etc.,  (except  where  the  statute  makes  a  difference,)  is 
much  the  same  in  attachment  suits  as  in  others  where  publica- 
tion is  resorted  to;  and  therefore  others  may  be  properly  con- 
sulted in  connection  with  attachment  suits. ^ 

1  Goodman  v.  Niblack,  102  U.  S.  Jackson  v.  Sprague,  1  Paine,  494; 
556;    Early    v.    Doe,    IG   How.   GU;       RoukendorflF   v.   Taylor's    Lessee,  4 

18 


274 


RETURN    AND    PUBLICATION. 


It  is  usual  for  stutiites  to  fix  some  period  witliin  which  pub- 
lication must  he  made;  and  tlie  person  to  be  nutihcd  is  entitled 
to  the  full  time.i  If  the  publication  he  postponed  till  the 
expiration  of  &ach  period,  the  attachment  falls.  2  And  the 
same  effect  follows  if  the  advertisement  is  not  pnblislied  the 
requisite  number  of  times  within  the  prescribed  period. ^  In 
all  cases,  the  order  for  publication,  the  publication  itself,  the 
proof  it,  and  the  record-showing  of  it  should  all  conform  sub- 
stantiallj  to  the  statute,  not  ouly  with  respect  to  the  particulars 
above  mentioned  relative  to  time,  but  also  wdien  some  prescribed 
interval  must  elapse  between  the  date  of  the  last  insertion  of 
the  advertisement  and  the  term  of  court. ^  Indeed,  whenever 
publication  is  required  bj  statute,  in  attachment  suits  or  any 


Pet.  361 ;  Hunt  v.  Wicldiffe,  3  Pet. 
201 ;  Worthington  v.  Hylyer,  4  Mass. 
205;  Bachelor  v.  Bachelor,  1  Mass. 
356 ;  Vose  v.  Handy,  2  Greenleaf,  322 ; 
Lawlin  v.  Clay,  4  Littell,  (Ky.)  283 ; 
Pyle  V.  Craven,  Id.  17;  Ilivard  v. 
Gardner,  39  111.  125;  Barnes  «.  The 
People,  IS  111.52;  Vairin  v.  Edraon- 
sou,  10  111.  270;  For&yth  v.  Warren, 
02  111.  68;  Andrews  v.  Ohio  R.  R.  Co. 
14  Ind.  169;  Morgan  v.  Woods,  33 
Ind.  23;  Harlow  t).  Eecktle,  1  Black- 
ford, (Ind.)  237;  Dubbs  v.  Heraken, 
etal.ii  ROb.  (La.)  129;  Parsons  0. 
Paine,  26  Ark.  124;  Muskingum 
Valley  Turnpike  v.  Ward,  13  Ohio, 
120;  Ford  v.  Wilson,  Tappan,  (O.) 
235;  Colston  v.  Berends,  1  Cro.  Mees. 
&  Ros.  833;  Baily  v.  Myrick,  50  Me. 
171;  Swett  V.  Sprague,  55  Me.  190; 
Drew  V.  Dequindre,  2  Doug.  (Mich.) 
93;  Swayze  v.  Doe,  21  Miss.  317; 
Bunce  v.  Reed,  16  Barb.  351 ;  Sheldon 
V.  Wright,  7  Barb.  45  and  5  N.  Y. 
517 ;  Olcott  V.  Robinson,  20  Barb.  149 
and  21  N.  Y.  153;  Soule  v.  Chase,  1 
Abb.  (N.  Y.)  Pr.  N.  S.  48;  Chanil)er- 
lain  V.  Dempsey,  13  Abb.  422 ;  Peo- 
ple ^.  Gray,  10  Abb.  469;  Matter  of 
Clark,  3  Deuio,  107;  Sloan   v.  Forse, 


11  Mo.  126;  Durrossett's  Admr.  v. 
Hale,  38  Id.  346;  Harris  v.  Grodner, 
42  Id.  159 ;  Haywood  v.  Russell,  44 
Mo.  252;  Moore  v.  Stanley,  51  Id. 
317;  Freeman  v.  Thompson,  53  Id. 
183. 

'  Lowenstine  v.  Gillispie,  6  Lea, 
641 ;  Swett  «.  Sprague,  55  Me.  190 ; 
Bogart  V.  Swezy,  26  Hun.  463 ;  Hunt 
v.  Wickliffe,  2  Pet.  301 ;  Colwell  v. 
Bank  of  Steubenville,  2 -Ohio,  239; 
Hasliell  v.  Bartlett,  34  Cal.  281 ;  Free- 
man V.  Thompson,  53  Mo.  183;  Pyle 
V.  Cravens,  4  Littell,  (Ky.)  17;  Swayze 
V.  Doe,  13  Smedes  &  M.  317;  Saflara- 
cus  V.  Bennett,  6  How.  (Miss.)  277. 

2  Mozarietta  v.  Saenz,  58  How.  (N. 
Y.)  Pr.  505 ;  Blossom  v.  Estes,  59  Id. 
381,  and  84  N.  Y.  614. 

3  Swett  V.  Sprague,  55  Me.  190; 
Dow  V.  Whitman,  36  Ala.  604 ;  Law- 
lin V.  Clay,  4  Littell,  (Ky.)  283 ;  Baeh- 
elor  V.  Bachelor,  1  Mass.  256. 

*  Andrews  v.  Ohio  R.  R.  Co.  14 
Ind.  169;  Muskingum  Valley  Turn- 
pike V.  Ward,  13  Ohio,  120 ;  Haywood 
V.  Russell,  44  Mo.  252;  Forsyth  v. 
Warren,  62  111.68;  Vairin  v.  Edmon- 
son, 10  111.  a70. 


PUBLICATION    NOTICE.  275 

otlior,  the  requisite  as  to  time  must  be  observed  as  well  as  all 
other  requirements.^ 

There  should  always  be  record  evidence  of  the  fact  of  pub- 
lishing the  notice.  2  Such  evidence  must  be  precisely  what  the 
statute  prescribes,  where  there  is  a  provision  specifying  what 
form  the  evidence  must  take.  Tlie  sheriif's  return  that  notice 
was  given  in  the  prescribed  way,  for  the  prescribed  time,  in 
the  journal  designated  by  tlie  law  or  by  the  order  of  court,  and 
with  all  the  particulars  of  information  which  tlie  statute  may 
require  as  essential  to  be  notified  to  the  defendant,  may  be 
sutlicient  in  the  practice  of  some  States.  Usually  and  more 
commendably,  the  papers  containing  the  advertisement  are  filed 
in  tlie  cause,  with  the  sheriff's  return;  and  sometimes  the  pub- 
lisher himself  must  make  oath  that  the  notice  has  appeared  the 
requisite  number  of  times  within  the  given  period,  and  at  the 
proper  intervals.  It  has  been  held  that  the  fact  of  publishing 
may  be  found  by  the  court,  in  the  absence  of  anything  upon 
the  record  to  support  the  finding;  but  notice  to  an  absentee, 
like  any  other  jurisdictional  matter,  must  appear  of  record  in 
some  form.  Want  of  notice  may  be  assigned  as  error.  If  the 
record  shows  that  there  was  no  notice  when  the  statute  required 
one,  the  judgment  would  be  null. 

»  Morris    v.    Hogle,    37     111.   150;  Leavitt,  12  Me.  378;  Gary  i;.  May,  16 

Schnell  v.  Chicago,  38  111.  383;  Pom-  Ohio,  G6. 

eroy  v.  Betts,  31   Mo.   419 ;  Bobb  v.  ^  Johnson  v.  Layton,  5  Harrington, 

Woodward,  42   Mo.  483;    Likens    v.  (Del.)  353;  Brinsfield   ».   Austin,   3'J 

McCorraick,  39   Wis.  313;  Sexton  v.  Ala.  227;  Dow   il  AVhitman,  36   Ala. 

Rhames,  13  Wis.  99;  Scorpion  S.  M.  604;  Foyles  v.  Kelso,  1  Blackf.  (Ind.) 

Co.  V.  Marsano,  lONev.370;  Grewell  315;    Ex  parte   R.   R.  Co.  103   U.S. 

V.  Henderson,  5   Cal.  465;  People  v.  794;  Vairin  v.  Edmonson,  10  111.370; 

Huber,  20  Cal.81;  Lawrence  i).  State,  Haywood  v.   McCrory,   33   111.  459; 

30  Ark.  719;  Cook?;.  Farren,  34  Barb.  Haywood    v.    Collins,    60    111.    328; 

95;    Lovejoy  v.   Lunt,   48   Me.   377;  Johnson  «.  Hanna,  G6   Ala.  137;  Saf- 

Zacharie  t.  Bowers,  3  Sm.  &  M.  641;  faraus  v.  Terry,  20  Miss.  690;  Bates 

Mitchell  V.  Woodson,  37  Miss.   507;  v.  Crow,  57  Miss.  676;  Clark  v.  Bratt, 

Magoffin  i;.  Mandeville,  28  Miss.  3.54;  71    Mo.  473;  Millar   v.    Babcock,   29 

King   V.    Harrington,  14   Mich.   532;  Mich.  526;  Carleton   v.  Washington 

Crabb  «.  Atwood,  10  Ind.  331;  Hill  «.  Ins.  Co.  35  N.  H.   163;    Freeman  v. 

Foison,  37  Tex.  428;    Colman  v.  An-  Thompson,  53  Mo.  183. 
derson,     10    Mass.    105;     Bussey  v. 


2TG 


KETURN    AND    PUBLICATION. 


It  has  been  held  tluit  when  the  judgment  recites  that  pnhlica- 
tion  has  been  made  according  to  hiw,  there  is  sutlicient  record 
evidence  of  publication. ^ 

The  failure  of  the  record  to  show  the  fact  of  pnldication 
notice  in  compliance  with  law  is  so  serious  that  wlien  tlie  omis- 
sion is  assigned  as  error,  judgment  in  favor  of  tlie  attaching 
creditor  may  be  reversed  on  that  ground.  This  is  the  rule  in 
attachment  proceedings  as  well  as  in  other  classes  of  cases  where 
publication  is  required,'''  whether  held  jurisdictional  or  not. 

When  the  defendant  nnikes  no  ap]iL'arance  so  as  to  cure  want 
of  summons  or  notice,  the  record  must  show  one  or  the  other. 
'No  one  has  ever  conceived  that  summons  need  not  appear  of 
record,  in  a  suit  personal  in  form,  where  it  is  relied  upon  to 
show  jurisdiction  over  a  non-appearing  defendant.  Every  rea- 
son against  omitting  the  summons  from  the  record  under  such 
circumstances  applies  against  the  omission  of  publication 
notice  wdien  it  is  relied  upon,  after  failure  of  summons,  to  show 
jurisdiction  completed  over  the  attaclied  property.  Since  pub- 
lication is,  by  statute,  made  the  substitute  for  an  abortive  sum- 


^  In  Tennessee:  Hopper  v.  Fisher, 
2  Head,  253;  Cornelius  v.  Davis,  Id. 
97;  Birdsong  v.  Birdsong,  Id.  289; 
Davis  V.  eTones,  3  Id.  603;  Kilcrease 
v.  Blythe,  6  Humph.  378;  Gunn  v. 
Mason,  2  Sneed,  G37.  But  the  neces- 
sity of  publication,  and  its  appear- 
an(fe  of  record,  to  the  jurisdiction  of 
the  court,  is  fully  and  strongly  held 
in  the  much  later  case  of  Walker  v. 
Cottrell,  6  Bax.  257.  Also,  Ingle  v. 
McCurry,  1  Heis.  26.  The  Code  of 
Tennessee,  §  §  3522,  3523,  3524, 
makes  publication  a  jurisdictional 
requisite. 

2  Haywood  v.  Coll  ns,  60  111.  328; 
Haywood  v.  McOrory,  33  111.  459; 
Foyles  «.  Kelso,  1  Blackford,  215; 
Babbitt  v.  Doe,  4  lud.  355;  Guy  «. 
Pierson,  21  Ind.  18 ;  Doe  v.  Anderson, 
5  Ind.  34;  Dow  v.  Whitman,  3G  Ala. 
604;  Gibbs  v.  Shaw,  17  Wis.  197; 
Silzman  v.  Pacquelte,  13  Wis.  21)1; 


Cooper  V.  Sunderland,  3  Iowa,  114; 
Thornton  v.  Mulquinne,  12  Iowa,  549 ; 
Gelstrop  v.  Moore,  26  Miss.  206; 
Clark  V.  Holmes,  1  Doug.  (Mich.) 
391;  Palmer  -o.  Oakley,  2  Id.  472; 
Greenvault  v.  F.  &  M.  Bank,  Id.  498; 
Hawley  v.  Mead,  52  Vt.  343;  Kollins 
V.  Clement,  49  Vt.  98;  Folsom  v.  Con- 
nor, 49  Vt.  4;  Kidder  v.  Hadley,  25 
Vt.  544;  Wlu:ney  «.  Silver,  22  Vt. 
634;  Alexander  v.  Abbott,  21  Vt.  476; 
French  v.  Hoyt,  6  N.  H.  370;  Pope  «. 
Culler,  34  Mich.  152;  Gilletto.  Need- 
ham,  37  M'ch.  143;  Arnold  ?;.  Nye, 
23  Mich.  292;  Ryder  v.  Flanders,  30 
Mich.  341;  Corwin  v.  Merrill,  3  Barb. 
341;  Sheldon  v.  Wright,  5  N.  Y.518; 
Ridgeney  v.  Coles,  6  Bosworth,  (N. 
Y.)  4S6;  Sibley  «.  Waflle,  16  N.  Y. 
185;  Bloom  v.  Burdick,  1  Hill,  140; 
Dakin  v.  Hudson,  6  Cow.  222;  Floyd 
v.  Black.  Litt.  Sel.  Cas.  11. 


PUBIJCATION    NOTICE.  277 

mons,  so  far  as  proceeding  against  the  attached  property  of  the 
nominal  defendant  is  concerned,  it  is  entitled  to  equal  import- 
ance as  a  matter  of  record. 

Publication  notice  alone,  without  the  actual  attaching  aiKl 
continuous  holding  of  the  debtor's  property  is  of  no  avail ;i 
though  the  case  would  be  different  were  the  defendant  reached 
by  summons.  Publication  is  therefore  not  the  equivalent  of 
summons,  so  far  as  the  defendant  is  concerned,  but  only  so  far 
as  it  relates  to  attached  property;  but  the  reason  for  making  it 
of  record  is  as  sound,  even  in  the  absence  of  a  statutory  require- 
ment. The  recorded  notice  shows  that  the  owner  has  been 
given  opportunity  to  appear,  but  there  is  in  the  personal  suit 
no  substitute  for  service.  The  defendant  cannot  be  brono-ht 
into  conrt,  and  subjected  to  its  jurisdiction,  by  any  less  or  differ- 
ent means.  It  is  misleading  to  treat  j^ublication  notice  as  a 
substitute  for  service  on  the  defendant,  so  far  as  the  personal 
suit  is  concerned:  it  is  such  only  so  far  as  the  proceeding  is 
against  attached  property. ^ 

It  is  also  important  to  note  the  difference  between  proceed- 
ings against  attached  property,  with  respect  to  the  debtor- 
owner,  and  those  against  things  irrespective  of  owners,  in  the 
matter  of  publication.  In  the  former,  it  is  a  substitute  for 
summons:  in  the  latter  it  is  not,  and  cannot  possibly  be,  for 
the  reason  that  no  summons  is  ever  issued.  In  the  former,  the 
"notice  is  as  limited  as  the  summons:  in  the  latter,  it  is  "to  all 
persons  having,  or  pretending  to  have  any  right,  title  or  interest 
in  or  to"  the  property  against  which  the  proceeding  is  insti- 
tuted. The  legal  reader  will  see  that  to  hold  publication  notice 
a  non-essential  in  an  attachment  suit  after  summons  has  failed 
is  to  hold  the  issue  of  the  summons  itself,  in  the  first  instance,  to 
be  a  non-essential.     It   is  needless,   however,  to  anticipate  in 

1  Pennoyer  ?).  Neff,  95  U.  S.  71'^  metliod:      Vallee    v.    Dumergue,    4 

2  Notice  by  publication  may  be  Exch.  290;  Lafayette  Ins.  Co.  «. 
substituted  for  service,  so  as  to  bind  French,  IS  How.  (U.  S.)  404;  Gillis- 
the  defendant  personally,  if  be  has  pie  v.  Commercial  Mutual  Marino 
previously   assented  to  such   substi-  Ins.  Co.,  12  Gray,  201. 

tuliou    in   some    legally   prescribed 


278  RETURN    AND    PUBLICATION. 

this  place,  a  matter  rather  belonging  to  a  question  of  jurisdic- 
tion. 

Whether  publication  notice  when  thus  standing  in  lieu  of 
summons  for  the  purposes  of  the  property  action,  must  always, 
as  a  jurisdictional  fact,  appear  in  the  record  of  attachment  pro- 
ceedings; whether  it  may  be  presumed  wlien  omitted,  or  treated 
as  a  non-essential,  in  case  of  a  collateral  attack  upon  a  judgment 
under  which  attached  property  has  been  sold,  are  questions  that 
more  appropriately  appertain  to  jurisdiction. 

It  is  sufiicient  to  suo^crest  here  that  even  if,  under  decisions 
in  some  of  the  States,  judgments  have  been  sustained  when 
collaterally  attacked,  though  the  record  showed  no  summons 
served  and  no  notice  published  and  no  appearance  of  the 
defendant,  it  is  yet  the  safer  course  even  in  those  States  to  have 
the  notice  duly  entered  of  record.  In  other  States,  where 
such  notice  is  required  to  be  of  record  like  all  other  jurisdic- 
tional facts,  and  where  an  attachment  judgment  is  absolutely 
void  when  without  record  proof  of  the  fact,  the  important 
entry  is  no  more  to  be  overlooked  than  a  served  summons  in  a 
personal  suit  against  a  defaulted  defendant.  Everywhere,  the 
record  evidence  is  essential  to  avoid  the  reversal  of  a  judgment 
for  the  attaching  creditor.  Always,  therefore,  in  every  State, 
the  plaintiff's  counsel  should  not  only  have  publication  made 
in  default  of  summons,  but  also  see  that  it  is  properly  entered 
of  record.  In  whatever  way  the  publication  may  be  proved  in 
different  States,  the  statutory  requirement  of  notice  cannot  be 
disregarded  without  rendering  the  proceedings  absolutely  void. 


CUSTODY    BY    TUK    SlIEKIFF.  279 


CHAPTER    IX. 

THE    PROPERTY     IN    COURT. 

§  1.     Custody  by  the  Sheriff.  §  4.     Tlie  Garnishee's  Possession 

2.  Keepers,  Receijjtors,  etc.  5.     Sale  of  Perishable  Goods. 

3.  Defeudaut  Holding  under  the  6.     Loss  of  Custody. 

Sheriff. 

Sec.  1.    Custody  by  the  Sheriff. 

When  the  return  shows  that  property  of  the  debtor  has  been 
validly  attached,  the  court,  in  conteuiphxtion  of  law,  is  in  pos- 
session of  tlie  res  and  may  exercise  control  over  it.  It  is  neces- 
sary to  an  attachment  suit,  as  it  is  in  any  proceeding  in  rem, 
that  the  property  be  in  court.  The  custody  by  the  sheriff  is 
not  adverse  to  the  judicial  possession  but  under  the  authority 
of  the  court.  The  custodj^  by  a  keeper  is  under  the  marshal, 
sheriff,  constable  or  other  executive  officer;  so  also,  the  pos- 
session by  a  receiptor,  or  by  the  debtor  himself  under  a  forth- 
coming bond,  is  entirely  subordinate  to  that  of  the  responsible 
executive  officer,  and  all  are  under  the  court;  the  attached 
property  is  none  the  less  in  court  by  reason  of  its  having  been 
entrusted  to  any  subordinate  custodian. 

The  immediate  relation  of  the  court  to  the  property  is 
through  the  executive  officer,  to  whom  judicial  orders  respect- 
ing the  custody,  preservation,  sale  or  delivery  are  addressed. 
The  entrusting  of  property  to  keepers  or  receiptors  is  done  by 
that  officer  himself,  pursuant  to  law;  and  even  the  temporary 
and  contingent  release  to  the  defendant  on  a  forthcoming  bond 
is  his  business  in  many  of  the  States.  And  even  property  or  a 
credit  of  the  defendant,  attached  in  the  hands  of  a  third  per- 
son, is  deemed  to  be  in  court  for  all  the  purposes  of  the  suit. 

The  sheriff  must  exercise  care  and  diligence  in  the  keeping 
and  preservation  of  the  property  attached,  and  he  is  legally 


280 


THE    PROrERTY    IN    COURT. 


responsible  therefor  to  whom  it  may  concern. ^  lie  is  not 
responsible  beyond  reasonable  watchfulness,  precaution  and  the 
employment  of  proper  means  of  security.  He  ought  to  be  even 
more  careful  than  owners  ordiimrily  are.  He  would  not  be 
doing  his  duty  should  he  leave  the  door  unlocked  in  which 
attached  goods  are  stored  with  no  keeper  on  guard,  tliougli 
owners  are  accustomed  to  leave  many  species  of  property  thus 
exposed.  This  is  because  they  are  in  more  danger  of  being 
molested  than  goods  not  under  seizure.  He  is  not  liable,  how- 
ever, when  attached  property  perishes  without  his  fault. 2 

If,  to  avoid  expense,  or  for  otlier  reason,  the  plaintiff  should 
obtain  an  order  of  court  directing  the  officer  to  dispense  with 
the  keeper,  the  sheriff,  though  still  bound  to  due  diligence, 
could  not  be  held  responsible  to  the  plaintiff  for  any  loss  trace- 
able to  the  want  of  a  keeper.  The  plaintiff,  to  effect  the  dis- 
charge of  the  keeper,  should  apply  to  the  court:  not  to  the 
executive  officer.^ 

Efficient  care  and  diligence,  in  the  protection  and  preserva- 
tion of  the  things  attached,  is  required;  such  care  as  is  reason- 
able and  necessary  for  the  protection  and  preservation  of 
property  under  seizure  and  subject  to  litigation;  and  courts 
always  take  into  consideration  the  circumstances  of  each  case.* 


'Becker  ■».  Bailies,  44  Ct.  167; 
Bridges  1;.  Perry,  14  Vt.  262;  Culler 
V.  Howe,  123  Mass.  541;  Davis  v. 
Stone,  120  Mass.  228;  Weaver  v. 
Wood,  49  Cal.  297;  Kendall  v.  Morse, 
43  N.  H.  553;  Lovejoy  v.  llutchius, 
28  Me.  272;  Clerk  v.  Withers,  2 
Lord  Raymond,  1075;  Mildmay  v. 
iSmith,  2  Saund.  343;  Wilbraliam  v. 
Snow,  Id  47. 

2  Ide  V.  Fassett,  45  Vt.  68 ;  Cross  v. 
Brown,  41  N.  H.  283;  Shaw  v. 
Laughton,  20  Me.  2G6 ;  Falls  v.  Weis- 
Binger,  11  Ala.  801. 

3  The  Independent,  9  Ben.  489. 

*  Starr  «.  Moore,  3  McLean,  354; 
Farris  v.  The  State,  33  Ark.  70;  Ad- 
leri;.  Roth,  2  McCrary  445;  Runlelt 
V.  Bell,  5  N.    H.    433;     Howard   v. 


Whittemore,  9  N.  H.  134;  Barron  v. 
Cobleigh,  11  N.  H.  557;  Kendall  v. 
Morse,  43  Id.  553 ;  Bruce  v.  Petteu- 
gill,  12  Id.  341;  Bridues  v.  Perry,  14 
Vt.  262  ;  Johnson  v.  Edsou,  2  Aikens, 
(Vt.)  299;  Brown  v.  Richmond,  27 
Vt.  583;  Gilbert  «.  Crandall,  34  Id. 
188;  Briggs  v.  Taylor,  28  Id.  180; 
Pliillips  V.  Bridge,  11  Mass.  242;  Ty- 
ler e.  Ulmer,  12  Id.  163;  Congdon  v. 
Cooper,  15  Id.  10;  Cooper??.  Mowiy, 
16  Id.  5;  Sewall  v.  Mattoon,  9  Id. 
535;  Fettyplace  v.  Dutch,  13  Pick. 
388;  Hemmenway  v.  Wheeler,  14  Id. 
408;  Sanderson  v.  Edwards,  16  Id. 
144;  Douham  v.  Wild,  19  Id.  520; 
Lawrence  v.  Rice,  12  Met.  527;  Dor- 
hnm  y.  Kane,  5  Allen,  38;  Pierce  ». 
Strickland,  2  Story,   292;  Adams  v. 


CUSTODY    BY    THE    SHERIFF. 


281 


It  is  the  officer's  right  and  duty  to  protect  the  proj^erty  in 
his  charge  from  trespassers,  and  they  are  directly  liable  to 
Jiiin.i 

Upon  the  dissolution  of  attaclnnent,  it  is  his  duty  to  restore 
the  res  to  the  defendant — not  the  immediate  duty  of  the  plain- 
tiff, since  the  latter  has  no  possession. 2  In  his  capacity  as 
custodian  under  the  court,  irb  consideration  of  his  ultimate  duty 
to  have  tlie  property  ready  for  execution  shouhl  there  be  judg- 
ment for  the  plaintiff,  or  to  return  it  to  the  defendant  should 
there  be  judgment  in  favor  of  the  latter,  he  has  such  present 
legal  right  of  property  i^  it  that  he  may  sue  and  be  sued  con- 
cerning it,  in  his  own  official  character. 

Legal  and  constructive  possession  and  actual  control  must  be 
maintained  though  the  property  be  not  susceptible  of  manipu- 
lation, and  though  the  seizure  was  effected  by  giving  notice  or 
by  whatever  other  method  may  have  been  most  practicable,  in 
conformity  to  statute.     Machinery  bolted  or  otherwise  fastened 


Balch,  5  Me.  188;  Jenney  v.  Deles- 
dernier,  20  Me.  183;  Twomlily  v. 
Hunnewell,  3  Me.  221;  Rice  v.  AVilk- 
ins,  21  Id.  558;  Tuliey  v.  Smith,  18 
Id.  125;  Childs  «.  Ham,  23  Id.  74; 
Farnham  «.  Oilman,  24  Id.  250; 
Lovejoy  «.  Hutchins,  23  Id.  272; 
Bennett  w.  Brown,  31  Barb.  158;  Mc- 
Kay -y.  narrower,  27  Id.  463 ;  Moore 
v.  Westervelt,  1  Boswortli,  357;  Dick 
V.  Bailey,  2  La.  Ann.  !/74;  McComb 
«.  Reed,  28  Cal.  281 ;  Sagely  ®.  Liver- 
more,  45  Id.  613;  Weaver  v.  Wood, 
49  Id.  297;  Newman  y.  Kane,  9  Nev. 
234;  State  'o.  Baldwin,  10  Bissell, 
165. 

1  Smart  «.  Bacbelder,  57  N.  H.  140; 
Ordiorne  xi.  Colley,  2  Id.  66;  Sinclair 
v.  Tarbox,  Id.  135;  Goodrich  v. 
Church,  20  Vt.  187;  Whitney  v. 
Ladd,  10  Id.  165;  Barker  v.  Miller,  6 
Johns.  195;  Hotchkiss  v.  McVicker, 
12  Id.  403;  Ladd  v.  North,  2  Mass. 
514;  Warren  v.  Leland,  9  Id.  265; 
Perley  ».  Foster,  Id.    112;  Ludden  y. 


Leavitt,  Id.  104;  Gibbs  «.  Chase,  10 
Id.  125;  Gates  ».  Gates,  15  Id.  310; 
Gordon  v.  Jenney,  16  Id.  465;  Whit- 
tier  «.  Smitli,  11  Id.  211;  Harrimaa 
«.  Gray,  108  Mass.  229 ;  Pool  v.  Sym- 
onds,  1  N.  H.  289;  Huntington  «. 
Blaisdell,  2  Id.  317;  Lovell  v.  Sabin, 
15  Id.  29;  Butterfield  y.  Clemence, 
10  Cush.  269;  Strout  v.  Bradbury,  5 
Me.  313;  Nichols  v.  Valentine,  36 
Me.  332 ;  Walker  v.  Foxcroft,  3  Id. 
270;  Torrey  -o.  Otis,  67  Me.  573; 
Wadsworth  v.  Walliker,  45  Iowa,  395 ; 
Lalhrop  «.  Blake,  3  Fos.  46;  Lowry 
«.  Walker,  5  Vt.  181;  Whitney  ». 
Ladd,  10  Id.  165;  Adler  «.  Roth,  3 
McCrary,  445;  Utley  v.  Smith,  7  Vt. 
154;  Browuell  «.  Mancliester,  1  Pick. 
233;  Badiam  t\  Tucker,  Id  389; 
Stiles  ».  Davis,  1  Black,  101;  Rhoads 
■t.  Woods,  41  Barb.  471 ;  Farris  v. 
The  State,  use,  etc.  33  Ark.  70;  At- 
kins -y.  Swope,  38  Id.  538;  Foulks  v. 
Pecro..  6  Nev.  136;  U.  S.r.  McDonald, 
8  Biss.  4:)9. 

-Bhinehard  v.  Brown,  42  Mich.  46. 


282   ,  TUE  PKOrERTY  IN  COUKT. 

to  the  freehold,  need  not  be  removed  by  the  sheriff  for  the  pur- 
pose of  getting  legal  possession  and  control;  and  he  need  not 
detach  it  in  order  to  maintain  his  possession. i 

Land  is  attached  by  giving  notice  to  the  tenant  in  possession, 
making  ]n-oper  return,  recording  the  lien  when  required,  etc., 
and  there  is  no  need  of  the  appointment  of  a  keeper  to  main- 
tain the  possession;  but  the  legal  custody  must  be  maintained 
as  in  tlie  case  of  personal  property.  Whatever  would  operate 
a  disjjlaceinent  of  the  lien  created  by  the  constructive  seiz- 
ure, so  that  the  property  could  be  transferred  by  the  defendant 
free  from  incumbrance,  would  be  equivalent  to  the  relinquish- 
ment of  the  legal  possession;  and,  if ■  such  result  should  prove 
to  have  been  caused  by  any  action  or  negligence  of  the  sheriff 
or  marshal,  or  of  those  under  his  authority,  he  would  be 
responsible. 

The  sheriff  may  keep  attached  goods  under  lock  and  key  in 
a  warehouse,  or  otherwise  and  elsewhere,  under  his  own  imme- 
diate care;  but  it  is  usual  to  entrust  them  to  the  care  of  a 
keeper  selected  in  consideration  of  his  trustworthiness.  Keep- 
ers are  often  necessary  to  secure  the  safety  of  attached  goods 
or  other  articles  of  personal  property,  especially  when  there  are 
several  cases  of  seizure  in  court  so  that  it  may  become  imprac- 
ticable for  the  sheriff  to  become  the  personal  and  immediate 
custodian  of  all.  Keepers  are  the  servants  of  the  sheriff,  sub- 
ject to  his  direct  commands,  while  he  continues  amenable  to 
the  court  as  the  only  custodian  judicially  recognized  as  respon- 
sible for  the  safe-keeping  and  certain  forthcoming  of  the  j^rop- 
erty  upon  which  the  jurisdiction  rests. 

Goods  attached  are  often  allowed  to  remain  in  the  store  or 
warehouse  in  which  they  are  found,  since  this  is  usually  most 
to. the  interest  of  all  parties  concerned,  and  prevents  the  loss, 
intermixture  and  confusion  which  removal  would  be  likely  to 
cause;  but,  M'hen  such  building  is  not  itself  one  of  the  subjects 
of  the  attachment,  but  is  the  property  of  the  defendant,  or  his 

1  Patch  «.  Wessels,  46   Mich.  249;  178;   Cavr  v.  Farle^y,   12  Id.  328.    So 

Hatch  «.  Fowler,   28   Id.  211.   So  of  of  a  growing  crop:  Grover  b.  Buc]<, 

farming  products,  in  bulk,  stored  in  34  Mich.    519.     So  of  corded  wood: 

a  barn:  Woodman  v.  Tralton,   7  Me.  Molm  v.  Barton,  27  Minn.  530. 


KEEPERS,    liECKIPTOKS,    ETC.  283 

lessor  or  some  other  person,  the  sheriti' ciuiiiot  detain  the  goods 
there  as  a  matter  ot"  riirht. ^ 

Sec.  2.    Keepers,  Receiptors,  &c. 

Attaclied  property,  though,  entrusted  to  a  receiver,  remains 
in  custodia  legis/^ 

A  debtor  gave  a  hill  of  sale  of  pei-sonal  property,  and  agreed 
tliat  the  nominal  vendee,  (who  was  a  mortgagee,)  should  hold 
the  property  till  a  debt,  owing  to  that  vendee  and  another  per- 
son, should  be  paid.  Another  creditor  attached  the  property. 
The  vendee  was  made  keeper.  He  subsequently  conveyed  his 
interest  to  his  own  co-creditor  and  delivered  tlie  property  to 
him.  Under  these  circumstances  it  was  held  error  to  charge 
the  jury  that  the  attachment  lien  was  lost  by  the  sheritPs  leav- 
ing the  property  in  the  possession  of  the  mortgagee  as  keeper.^ 
Indeed,  while  the  property  was  lawfully  in  the  hands  of  the 
holder  of  a  perfect  lien,  what  right  would  the  ofhcer  have  had 
to  take  it  out  of  them  for  the  purpose  of  creating  a  hypotheti- 
cal one?  The  court  said  that  by  accepting  the  trust  as  keeper, 
the  mortgagee  was  estopped  from  denj'ing  the  validity  of  the 
attachment  lien.  It  certainly  seems  that  the  mortgagee  could 
have  done  better  than  accept  the  appointment  from  the  sheriff; 
he  might  have  stood  upon  his  prior  right  to  hold  as  a  chattel 
mortgagee  in  possession. 

It  is  a  common  practice,  in  some  of  the  States,  for  the  sher- 
iff to  entrust  attached  property  to  receiptors.  He  takes  from 
them  written  acknowledgements  showing  that  they  hold  the 
properly  under  him,  subject  to  be  returned  to  him  on  his 
demand.  Such  a  receiptor  may  be  the  friend  of  the  attachment 
debtor,  and  may  really  accept  the  position  of  bailee  in  the 
interest  of  the  debtor  who  is  still  the  owner  of  the  property 
and  presumptively  not  indebted  as  charged;  but  the  receiptor 
is  legally  the  sheriff's  servant,  bound  to  hold  under  him,  to  pre- 
serve and  protect  the  property  for  him,  and  to   have  it  forth- 

»  Williams  v.    Powell,    101  Mass.      com   v.  Spoor,  12  Id.  279. 
4G7;  Newton  v.   Adams,  4  Vt.   437;  ^ -vyrall  «.  Pulliam,  5  Heisk.  365. 

Rowley  i).  Rice,   11   Met.   337;  Mai-  » jyiopesi  «.  Swift,  15  Nev.  215. 


284 


THE    PROrERTY    IN    COURT. 


coming  for  the  purposes  of  the  attacliment  suit  when  required. 

The  sheriff  is  not  bound  to  turn  pro])ei'ty  over  to  a  receiptor, 
even  wliere  that  practice  is  prevalent.  lie  may  wisely 
decline  to  do  so  unless  well  secured 'by  bond.  It  would  be  un- 
safe to  do  so  without  security,  unless  the  plaintiff"  has  previously 
consented  to  such  arrangement  and  thus  exonerated  the  sheriff 
from  all  danger  of  subsequent  blame  and  claim  for  damage. 

The  attached  property  should  be  described  in  the  receipt; 
there  should  be  an  inventory  if  there  are  several  articles;  there 
should  always  be  such  particularity  as  to  render  the  property 
easily  susceptible  of  identification.! 

A  bailee  to  whom  attached  property  is  entrusted  by  the 
sheriff  is  the  agent  of  that  officer  for  keeping  it — not  of  the 
plaintiff  or  defendant.  It  is  still  in  the  constructive  possession 
of  the  court;  still  legally  in  the  hands  of  the  sheriff  by  the 
bailee  holding  under  him  as  his  representative,  or  agent,  or 
servant.  2 

The  receiptor,  while  thus  holding  things  pending  the  suit, 
has  no  such  possession  as  would  enable  him  legally  to  turn 
them  over  to  the  defendant  free  from  lien,  to  sell  them,  or  other- 
wdse  to  dispose  of  them.^  He  cannot  appropriate  the  things  to 
himself,  subject  them  to  his  own  use,  and  offer  to  return  equiva- 


*  Anthony  v.  Comstock,  1  R  I. 
454. 

2  Dudley  v.  Lamoille  County  Bank, 
14  Fed.  Rep.  317.  "The  mere  ser- 
vant of  the  sheriff:"  Ludden  v.  Leav- 
itt,  9  Mass.  104;  reaffirmed:  Warren 
V.  Leland,  Id.  265 ;  the  receiptor  is 
the  sheriff's  servant,  and  the  sheriff 
retains  the  lawful  possession :  Brow- 
nell  V.  Manchester  et  al.  1  Piclc.  2;)2; 
receiptor  considered  "  in  no  other 
character  than  as  the  servant  of  the 
officer:"  Bond  v.  Padelford,  18  Mass. 
895;  "mere  servant:"  Common- 
wealth V.  Morse,  14  Mass.  217.  To 
the  same  effect:  Barker  ■».  Miller,  6 
Johns.  195;  Brown  v.  Cook,  9  Id. 
8J1 ;  Dilleuback  v.  Jerome,  7  Cow. 


294;  Roberts  v.  Carpenter,  58  Vt. 
G78;  Mitchell  -y.  Hinman,  8  Wend. 
()G7;  Bangs  v.  Beacham,  68  Me.  425; 
Torrey  v.  Otis,  67  Me.  573 ;  Small  'c. 
Hutchins,  19  Me.  255;  Eastman  i;. 
Avery,  28  Id.  248;  Farris  v.  The 
State,  use,  etc.  38  Ark.  70 ;  Gilbert  v. 
Crandall,  84  Vt.  188.  The  deposi- 
tary  of  attached  property  is  the  ser- 
vant of  the  sheriff:  Meshew  v.  Gould, 
80  La.  Ann.  Part  I.,  1G8. 

3  Bacon  -y.  Daniels,  116  IMass.  474; 
Bangs  V.  Beacham,  68  Me.  425 ;  Sibley 
v.  Story,  8  Vt.  15 ;  Stimsen  v.  Ward, 
47  Vt.  624;  Haynes  v.  Morgan,  3 
Mass.  208 ;  Ball  v.  Claffiu,  5  Pick. 
303. 


KEEPERS,    EECEIPToKS,    ETC.  285 

lents  or  pay  the  value;  for  the  officer  has  no  right  to  take  from 
him  an  alternate  oblig-ation.i 

Since  the  holding  of  the  receiptor  is  under  the  sheriff;  since 
the  latter  retains  the  legal  possession  and  control  so  that  the 
property  is  still  deemed  to  be  in  court,  the  attaching  creditor's 
lien  is  not  divested  by  the  physical  passage  of  the  property  into 
the  hands  of  the  I'cceiptor.^ 

It  is  certainly  in  the  power  of  the  receiptor  to  destroy  the 
lien  .in  various  wnys.  He  may  physically  deliver  it  to  the 
defendant,  or  whislc  it  off  beyond  the  jurisdiction,  or  commit  it 
to  the  flames.  The  sheriff,  by  reason  of  his  rightful  control, 
may  retake  the  property  from  the  defendant,  pui'sue  it  beyond 
the  jurisdiction  and  regain  it  by  legal  process  there  and  bring 
it  back,  or  rescue  it  from  the  fire,  if  he  can.  But  if  he  cannot, 
the  lien  of  the  plaintiff  could  not  possibly  be  perfected  by 
judgment,  and  tiic  court's  jurisdiction  over  the  lost  res  would 
be  ousted.  The  ]^laintiff  would  hold  the  sheriff  responsible; 
the  sheriff  would  hold  the  receiptor  responsible,  but  the  lien 
would  be  lost  by  the  receiptor's  illegal  act. 

There  is  nothing  specially  remarkable  in  this,  for  an  ordinary 
keeper  or  the  sheriff  himself  might  destroy,  transport  or 
abandon  attached  jtroperty  so  as  to  defeat  the  lien  and  divest 
the  jurisdiction  so  far  as  the  proceeding  directly  against  the 
property  is  concerned. 

The  abandonment  of  attached  property  to  the  defendant  by 
the  receiptor,  being  an  illegal  act  entitled  to  no  favor,  does  not 
ipso  facto  divest  the  sheriff'  of  his  legal  possession,  since  the 
right  remains  in  him  to  take  actual  possession  whenever  he  can, 

1  Page  V.  Thrall,  11  Vt.  230;  Water-  15  Vt.  310;  Rood  v.  Scott,  5  Id.  263; 
house  V.  Bird,  37  Me.  8£G;  Waterman  Beach  ».  Abbott,  4  Id.  605;  Piersonw. 
V.  Treat,  49  Id.  309 ;  Lamb  v.  Day,  8  Hovey,  1  D.  Chipman,  (Vt.)  hi ;  Enos 
Vt.  407;  Sibley  «.  Story,  8  Id.  15;  v.  Brown,  Id.  280;  Stowe  v.  Butt- 
Dean  v.  Bailey,  12  Id.  142;  Paul  -y.  rick,  125  Mass.  449;  Woodwards. 
Slason,  22  Id.  231;  Briggs  v.  Glea-  Munson,  126  Mass.  102;  Tomlinsont>. 
son,  29  Id.  78;  Collins  v.  Perkins,  31  Collins,  20  Ct.  364.  The  sheriff  re- 
Id.  024.  tains    legal     possession     of     money 

2  Roberts  v.  Carpenter,  53  Vt.  078;  attached  and  left  in  the  hands  of  a 
Mitchell  ■«.  Gooch,  60  Me.  110;  Bean  third  person  who  gives  no  receipt 
v.  Ayers,  70  Me.  421;  Whitney  ■».  therefor:  AVatkins  v.  Cawthoru,  33 
Far  well,  10  N.  11.  9 ;  Kelly  v.  Dexter,  La.  Ann.  1194. 


286 


THE    PKOrERTY    IN    COURT. 


and  to  deprive  tlie  receiptor  of  tlie  trust  he  is  about  to  al>iiso. 
or  deprive  the  defendant  of  the  property  when  the  trust  lias 
been  thus  abused.  ^ 

Whether  or  not  the  lien  is  lost  by  the  unlawful  restoration 
to  the  defendant,  depends  upon  attendant  circumstances.  Jf 
the  sheriff  knowin^-ly  lets  personal  property  remain  in  the 
debtor's  hands  so  that  he  ceases  to  be  the  legal  custodian, 
and  the  debtor  conveys  them  to  an  innocent  third  person  pur- 
chasing for  value  and  getting  delivery,  the  court's  control  w:ould 
be  broken,  and  the  lien  by  attaching  would  bo  lost. ^ 

When  the  sheriff  takes  a  receipt,  with  the  alternate  obliga- 
tion assumed  by  the  receiptor,  to  i-eturn  the  goods  on  demand 
or  pay  their  value,  (which  is  illegal,  and  to  be  construed  as  a 
promise  to  return  the  goods,  s)  it  seems  that  the  lien  would  be 
lost  immediately  upon  his  restoration  of  the  property  to  the 
defendant.  4 

The  receiptor  cannot  avail  himself  of  trifling  errors  in  the 
proceedings  for  the  purpose  of  avoiding  his  obligations. ^ 


1  Bean  v.  Ayers,  70  Me.  421 ;  ^7ood- 
ward  V.  Munson,  126  Mass.  102. 
Cases  cited  in  preceding  note,  and 
Briggs  V.  Mason,  31  Vt.  433;  Rood  v. 
Scott,  5  Id.  263 ;  Sibley  v.  Story,  8 
Id.  15;  Bond  v.  Padelford,  13  Mass. 
394 :  "  The  special  property  remained 
in  him  [the  sheiitf,]  and  he  had  a  com- 
plete right  to  the  ]iossession."  Odi- 
orne  v.  Colley,  2  N.  H.  66;  Whitney 
V.  Farwell,  10  Id.  9. 

2  Baker  v.  Warren,  6  Gray,  527 ; 
Whitney  v.  Farwell,  10  N.  H.  9; 
Davis  V.  Miller,  1  Vt.  9;  Baker  v. 
Fuller,  21  Pick.  318;  Tomlinson  v. 
Collins,  20  Ct.  364;  Thompson  v. 
Baker,  74  Me.  48. 

3  Sibley  v.  Story,  8  Vt.  15. 

*  In  Kobinsou  v.  Mansfield,  13 
Pick.  142,  it  was  insisted  upon  by 
counsel  that  notwithstanding  the  res- 
toration to  the  defendant  of  attached 
property,  by  one  Kimball,  receiptor, 
the  sheriff  retained  the  legal  posses- 
sion, etc.,  but  the  court  said:    "This 


objection  is  invalid,  for  the  lien  had 
been  discharged,  and  the  obliijation 
of  Kimball  substituted  for  the  goods. 
It  has  always  been  lield,  that  where 
goods  attached  are  placed  in  ihe  cus- 
tody of  a  receiptor  in  the  usual  mode, 
and  delivered  to  the  debtor,  they  may 
be  conveyed  by  the  debtor  or  be 
attached  again  at  the  suit  of  another 
creditor."  In  Denny  v.  AVillaixl,  11 
Pick.  519,  it  is  held  tliat  the  deiend- 
ant  may  sell  property  returned  to  him 
by  a  receiptor,  and  that  if  they  re- 
main subject  to  the  attachment,  the 
general  property  will  pass  by  the 
sale,  subject  only  to  the  lien.  Of 
course,  any  attachment  defendant 
may  sell  subject  to  the  lien,  even 
when  his  attached  projierty  is  under 
the  sheriff's  bolts  and  bars. 

5  Hunter  v.  Peaks,  74  Me.  363, 
where  a  receiptor  sought  to  avail 
himself  of  an  error  in  the  defend- 
ant's name — C.  Wood  instead  of  Rob- 
ert C.  Wood.     In   Shaw  v.   O'Brion, 


KEEPERS,    RECEIPTORS,    ETC.  287 

The  true  rule  seems  to  be  that  the  court's  posse.«sio)i  ami 
jurisdiction  remain  inviolate,  even  when  the  property  is  physi- 
cally in  the  defendant's  hands,  if  he  holds  under  the  sheriff 
after  attachment  and  after  it  has  been  entrusted  to  a  bailee  or 
receiptor,  ]ii'()vided  ho  derives  his  custody  of  it  from  such 
receiptor  and  docs  not  have  any  independent  rii^dit  to  hold.  If 
he  is  permitted  to  hold  adversely  to  the  sheriff,  it  is  not  possible 
that  the  court's  possession  can  also  be  maintained,  and  the 
attachment  lien  preserved.^  Whoever  may  be  tiie  agent  hold- 
ing under  the  sheriff,  the  latter  must  have  the  legal  possession 
and  control;  and,  unless  there  are  circumstances  justifying  con- 
structive possession,  it  must  be  actual,  in  the  hands  of  the 
officer  or  his  agent. ^ 

■  The  relation  of  the  receiptor  is  to  the  sheriff;  he  is  not 
directly  the  agent  of  the  court  in  his  custody  of  the  property, 
but  a  sub-agent;  he  is  the  direct  representative  of  the  execu- 
tive officer;  and  if  he  has  any  cause  of  com])laint,  he  must  look 
to  his  immediate  principal,  and  may  sue  him.^ 

"When  the  immediate  principal  is  released  from  his  duties  as 
custodian,  by  the  dissolution  of  the  attachment,  it  is  for  him  to 
discharge  the  receiptor.  When  the  latter  was  appointed  admin- 
istrator of  the  estate  of  the  defendant,  it  was  held  that  his 
office  of  keeper  ceased  because  the  death  dissolved  the  attach- 
ment.^ 

When  his  goods  are  detained  in  the  store-house  of  the 
defendant,  with  his  assent,  it  is  not  uncommon  for  the  seizino- 
officer  to  appoint  the  defendant's  storekeeper  or  warehouseman 
to  be  the  keeper  under  the  attachment.  Under  such  appoint- 
ment, the  M^arehouseman  becomes  the  servant  of  the  sheriff, 
and  the  goods  are  legally  in  court.     The  sheriff  may  appoint 

(59    Me.    501,    the    error   of  writing  190,  195;  Whitney  t;.  Farwell,  10  N. 

"Augustu"  instead  of  "Augustus"  in  H.  9;  Thompson  v.  Baker,  74  Me.  48; 

the  certificate  of  a  register  of  deeds  Bicknells.  Hill,  33   Me.  297;  Wads- 

Avas  held  fatal,  so  that  no  lien   was  worth  t).  Walliker,  45  Iowa,  395. 

created  on  the  estate  of  "Augustus."  ^  Adler  ».  Roth,  2  McCrary,  445. 

]}ut  this  is  not  inconsistent  with  the  '  Stowe  v.  Butrick,  125  Mass.  449. 

case   above  cited  respecting  receipt-  *  Dwyer  v.  Benedict,  12  K.   I.  459. 

ors  of  attached  property.  But  see    McClellau  v.   Lipscomb,  50 

»  Bridge  v.  AV'ymuu  et  al.  14  Mass.  Ala.  255. 


2S8  THE  PROrEKTY  IN  COURT. 

any  other  tlian  tlie  warelionseinan;  or,  lie  may  remove  him 
after  appointment  and  substitute  another  keeper,  since  the 
court  will  look  to  the  officer  himself  for  the  faitliful  custody  of 
the  property.!  It  is  therefore  not  as  the  defendant's  employee 
that  such  person  is  selected,  since  he  must  divest  himself  of 
that  character  upon  accepting  the  appointment.  To  leave  the 
goods  in  his  charge  while  he  is  yet  the  representative  of  the 
attachment  debtor  would  be  equivalent  to  their  restoration  to 
the  defendant,  which  would  be  an  abdication  of  jurisdiction  and 
relinquishment  of  lien. 2 

Were  household  goods  seized,  and  the  debtor's  wife  made 
keeper  (where  the  statute  allows  married  women  to  do  business 
on  their  own  account,  independent  of  their  husbands,)  and  she 
permitted  to  use  the  goods  in  the  family  as  usual,  they  must  be 
held  by  her  as  the  subordinate  of  the  sheriff  who  is  responsible 
for  their  safe  keeping  and  preservation  and  all  loss  of  ''wear 
and  tear"  in  such  an  extreme  ease.  And  so  also,  when  any 
other  keeper  allows  the  debtor's  family  to  use  attached  goods.  ^ 

Sec.  3.    Defendant  Holding  under  the  Sheriff. 

If,  under  the  operation  and  authorization  of  a  statute,  the 
sheriff  may  leave  attached  property  in  the  hands  of  the  defend- 
ant, it  is  always  only  as  agent  that  the  latter  holds.  He  can- 
not, under  any  statute,  have  legal  possession  independent  of  the 
sheriff  and  of  the  court,  after  attachment,  without  destruction  of 
the  entire  effect  of  the  act  of  seizing  under  the  writ.  lie  must 
hold  under  the  sheriff;  be  amenable  to  the  orders  of  the  sheriff 

1  Frounstein  ■».  Rosenham,  23  La.  Baker  ^).  Warren,  6  Gray,  527;  Thomp- 
Ann.  525;  Train  v.  Wellington,  13  son  i;.  Baker,  74  Me.  48;  Farris  v. 
Mass.  495;    Baklwin  v.  Jackson,  Id.      The  State,  use,  etc.,  33  Ark.  70. 

131.  3  Farrington  v.  Edgerley,  13  Allen, 

2  Montpelier  &  Wells  River  R.  R.  453;  Young  v.  Walker,  13  N.  H.502; 
Co.  V.  Coffrin,  53  Vt.  17;  Charnock  Bagley  v.  White,  4  Pick.  395;  Bridge 
V.  Colfax,  51  Iowa,  70;  Gower  v.  v.  Wyman  et  al.  14  Mass.  190;  Bald- 
Stephens,  19  Me.  93;  Pillsbury  v.  win  ®.  Jackson,  13  Id.  133;  Train  v. 
Small,  Id.  435;  Pomroy  v.  Kingsley,  Wellington,  Id.  497;  Denny  ■».  War- 
1  Tyler,  (Vt.)  394;  Flanagan  v.  Wood,  ren,  16  Id.  420;  Gordon  v.  Jenny,  Id. 
33  Vt.  333 ;  Taintor  v.  Williams,  7  Ct.  405. 

371;  Knap  ».  Sprague,  9  Mass.  358; 


DEFENDANT  HOLDING  UNDER  THE  SHERIFF.         289 

fio  that  the  Litter  may  always  he  enabled  to  obey  the  court  ■when 
mandates  are  issued  concerning  the  property.  There  cannot  be 
e\en  constructive  custody  unless  the  sheriff  or  other  officer 
immediately  under  the  court  lias  actual  control  so  as  to  be 
really  the  legal  custodian. 

If,  upon  his  own  responsibility,  the  sheriff  leaves  property 
which  is  susceptible  of  actual  manipulation  and  removal,  in  the 
hands  of  the  attachment  debtor,  taking  his  receipt  therefor,  such 
officer  would  be  answerable  to  the  attachment  plaintiff  for  thus 
destroying  the  lien,  should  it  thus  be  destroyed.  Whether  or 
not  it  would  be,  depends  entirely  upon  the  legal  capacity  in 
which  the  defendant  holds  possession.  Is  his  arrangement  such 
that  he  cannot  sell  his  property  free  from  incumbrance;  cannot 
deliver  it,  if  sold;  cannot  administer  it  except  under  the  sur- 
veilance  of  the  sheriff?  If  so,  he  cannot  set  up  that  the  lien  is 
gone.  And  if  third  persons  have  knowledo-e  of  such  arrange- 
ment, they  are  also  estopped.  Under  such  circumstances,  (if 
there  is  nothing  to  the  contrary  in  the  statutes  or  settled  prac- 
tice of  the  State  where  the  proceeding  is  had,)  the  entrusting 
of  the  property  to  the  defendant  upon  his  receipting  for  it  as 
keeper  is  not  necessarily  and  invariably  a  ground  for  the  disso- 
lution of  the  attachment.  1  The  defendant  may  agree  to  pay 
the  sheriff  for  the  keeper ;3  or  he  may  agree  to  pay  the  plaintiif, 
in  which  case  the  keeper's  wages  need  not  be  taxed  as  costs, 
yet  the  plaintiff  may  sue  the  defendant  on  such  an  agree- 
ment.^ 

Where  property  is  attached  for  a  debt  not  due,  the  attach- 
ment is  the  gist  of  the  action,  and  the  court  in  which  it  is 
brought  has  jurisdiction  and  power  to  protect  the  sheriff  in  his 
possession.  In  such  case,  if  land  has  been  attached,  the  court 
from  which  the  writ  is  issued  may  prevent  the  defendant  from 
wasting    the    lands,    cutting  timber,  etc.,   and    the    attaching 


'  Congdon  c.  Cooper,  15  Mass.  10;  317;  Constructive  possession:  More- 
Cooper  V.   Mowry,  16  Id.  8 ;  Ctirr  v.  si  v.  Swift,  15  Nev.  215. 
Farley,  12   Me.   328;    Woodman    v.  2  ]\ii^,i.tagh  •».  Connor,  15  Hun.  488; 
Trafton,  7  Id.  178;  Philips  v.  Bridge,  Brown  v.  Cooper,  65  How.  Pr.  126. 
11  Mass.  242;    Bridge  v.  Wyman,  14  »  Clark  v.  Gamwell,  135  Mass.  428. 
Mass.  100;    Lyman  v.  Lyman,  11  Id. 

19 


290  TITE    rUOI'KUTY    IN    COURT. 

creditor  or  the  sheriff  need  not  resort  to  anotlier  court  for  an 
injunction.! 

Sec.  4.    The  Garnishee's  Possession. 

The  character  of  the  garnishee's  lien  is  that  of  a  depositary, 
Tlie  lien  is  a  mere  right  to  hold,  not  a  riglit  in  the  thing  to 
secure  debt.  And  this  right  to  hold  is  not  created  by  tlie  sum- 
mons, but  must  be  existent  before  the  service  of  the  process  of 
garnishment.  It  is  derived  from  the  owner  of  the  goods.  Thd 
only  effect  which  the  garnishment  has  upon  tlie  right  to  hold 
IS  to  render  it  inalienable  while  the  garnishment  is  pending. 

The  action  which  the  garnishee  has  against  a  person  disturb- 
ing his  possession  is  not  because  he  is  a  garnishee  but  because 
he  is  the  lawful  possessor.  Any  despositary  has  an  action 
ao-ainst  the  disturber  of  his  lawful  possession  of  the  property 
of  another. 

Tlie  divested  garnishee  can  recover  only  nominal  damages 
if  no  loss  has  been  entailed.  His  action  would  be  like  that 
of  one  seizing  officer  against  another  who  has  divested  him  of 
possession,  after  it  turns  out  that  the  second  seizure  holds  good 
throucj-h  iudo-ment  and  execution  while  the  first  becomes  nuga- 
tory  by  subsequent  failure  of  the  plaintiff,  who  caused  its  issue, 
to  obtain  judgment.  An  action  of  trespass  would  lie  but  only 
nominal  damages  could  be  recovered. ^ 

This  qualilied  property  right  is  such  that  the  garnishee  may 
insure  the  goods  which  he  holds,  may  sue  those  wdio  disturb 
his  possession  without  bringing  his  action  in  the  name  of  either 
the  attaching  creditor  or  of  the  owner  of  the  property.  His 
•nosition  is  similar  to  that  of  a  sheriff  who  holds  attached  prop- 
erty, who  certainly  may  protect  it  in  his  own  name.  3 

The  garnishee  is  considered  to  have  a  sort  of  special  property 

1  Cooney    v.    Moroney,    45    Iowa,  as    stated  in   the  text.      No  action 

■  203:    Injunction  liad  been  issued  in  could  have  been  brought  on  the  debt 

the  District  Court,  and  motion  made  not  due,  except  aided  by  attacliment. 

to  dissolve  it  on  the  ground   that  it  Id.  ^  3956.     Vide  McClain'.s  Stat. 

affected   the   subject    matter  of  the  ^  Goodrich  «.  Church,  20  Vt.  1S7. 

attachment  suit  in  the  Circuit  Court.  *  White  v.  Madisou,  20  How.  Pract. 

Under  §  3389  of  the  Iowa  Code,  held  481. 


TnE  gaknisiike's  possession.  291 

in  that  vliicli  is  seized  in  his  hands.  He  lias  no  riglit  to  sell 
or  otherwise  dispose  of  it.  He  is  accountable  to  neither  the 
plaintiff  nor  the  defendant,  but  he  will  be  accountable  to  one 
or  the  other  at  the  end  of  the  litigation.  Should  he  relinquisli 
possession  in  favor  of  the  owner  or  of  a  stranger,  he  would 
thus  destroy  the  plaintift"'s  lien  butM'ould  make  himself  imme- 
diately responsible  to  the  plaintiff  to  the  degree  of  injury 
already  inflicted,  and  to  the  entire  value  of  the  property  should 
the  claim  cover  it  all,  and  should  the  claim  be  lost  by  reason  of 
the  wrongful  relinquishment  of  possession. 

The  garnishee's  qualified  property  in  the  thing  seized  in  his 
hands  is,  in  one  sense,  independent  of  both  parties,  since  it  is 
yet  uncertain  to  which  he  may  be  eventually  accountable.  The 
attaching  creditor  cannot,  on  motion,  obtain  an  order  to  have 
the  property  delivered  to  the  sheriff. i 

Goods  subjected  to  garnishment  rightly  remain  in  the  garn- 
ishee's hands  till  judgment  and  execution.  If,  however,  they 
are  seized  wrongfully  by  the  sheriff  in  execution  of  a  judg- 
ment in  another  suit,  they  ought  to  be  held  subject  to  the  lien 
created  by  the  garnishment.  If  not  so  held,  but  executed  to 
satisfy  the  judgment  upon  which  the  sheriff  seized,  tliat  officer 
would  be  responsible  to  the  garnishee  for  whatever  the  latter 
should  be  condemned  to  pay  to  the  attaching  creditor  in  the 
first  suit;  or,  he  would  be  responsible  to  that  creditor  upon 
tlie  maturity  of  his  garnishment  lien  by  judgment. 

However  much  the  goods  may  exceed  in  value  the  claim  of 
the  first  attaching  creditor,  the  second  should  proceed  by  garn- 
ishment whether  he  already  has  judgment  or  not,  and  so  should 
all  who  look  to  those  goods  for  the  making  of  their  money:  the 
goods  meanwhile  remaining  in  the  hands  of  the  garnishee, 
whose  right  to  hold  them,  originally  derived  from  the  defendant, 
becomes  a  duty  by  reason  of  the  summons.  Therefore  if  the 
goods  should  be  seized  under  process  and  taken  out  of  his 
hands,  it  is  clear  that  he  ought  to  have  his  remedy  against  the 
seizing  officer  who  thus  subjects  him  to  any  loss. 

The  garnishment  puts  the  goods  in  such  position  relative  to 

»  Hall  V.  Brooks,  89  N.  Y.  38. 


292  THE  PROPERTY  IN  COURT. 

other  creditors  of  their  owner  as  a,  seizure  in  execution  puts 
proj)erty  rehitive  to  those  wlio  liave  junior  executions.  Prop- 
erty seized  by  a  slierift'  in  execution,  though  worth  much  more 
than  what  is  necessary  to  satisfy  the  judgment,  cannot  be  talcen 
out  of  the  sheriff's  hands,  nor  can  any  portion  of  it  be  so  taken, 
under  the  hiter  executions.  The  junior  creditors  must  put  their 
writs  in  the  sheriff's  hands,  and  al)ide  their  turn  after  tlie  iirst 
execution  has  been  satisfied.  So  when  one  garnisliment  has 
been  made,  otliers  may  be  made,  but  the  goods  slioukl  be  left 
with  the  garnishee.  And  when  an  execution  by  a  judgment 
creditor  comes  into  competition  with  the  immature  lien  of  aii 
attaching  creditor,  the  goods  subjected  to  garnishment  ought 
to  be  left  with  the  garnishee  and  not  taken  into  the  actual  cus- 
tody of  the  seizing  officer.  No  injury  to  the  garnishee,  or  to 
the  plaintiff  in  garnishment,  may  result  by  such  taking,  if 
the  sheriff  holds  them  subject  to  judgment  upon  the  garnish- 
ment; for  the  garnishee,  having  no  interest  beyond  being  held 
harmless,  may  not  be  wronged  by  deprival  of  possession,  pro- 
vided the  goods  are  forthcoming  when  needed  to  satisfy  the 
garnishment-creditor's  demand.  So  the  latter,  if  neither  hindered 
nor  defeated  by  the  actual  subsequent  seizure,  would  have 
nothing  of  which  to  complain:  the  officer  holding  the  goods 
subject  to  the  garnisliment.  ^ 

The  garnishee  is  frequently  said  to  be  a  mere  stake-holder. 
Owing  a  debt,  it  matters  nothing  to  him  whether  he  pa_ys  it  to 
the  plaintiff  or  to  the  defendant,  provided  his  obligation  to  the 
latter  is  cancelled.  Holding  properly  not  his  own,  it  matters 
nothing  to  him  whether  he  delivers  it  to  the  plaintiff  for  the 
purpose  of  execution,  or  to  the  defendant-owner,  provided  such 
delivery  acquits  him  of  all  responsibility.  It  is  when  the  third 
person  is  thus  wholly  disinterested  that  the  process  of  garnish- 
ment is  rightly  applied  to  him.  He  cannot  justly  be  subjected 
to  the  process  to  his  own  injury.  He  cannot  be  made  to  pay 
his  debt  before  it  is  due,  nor  to  deliver  goods  during  the  time 

1  Burlingame  v.  Bell,  16  Mass.  318 ;      wood  v.  Varnum,  IT  Tick.  289. 
Swett  u.  Brown,  5  Pick.   178;  Rock- 


THE  garnishee's  possession.  293 

in  which  he  may,  by  previous  contractor  otherwise,  be  entitled 
to  retain  thera. 

Whateverhis  ]>osition  towards  the  defendant,  he  must  respect 
the  summons  and  make  honest  answer  whether  lie  is  indebted 
to,  or  holds  property  of,  the  defendant,  with  such  qnaliticatiou 
and  explanations  as  may  show  the  nature  of  such  indebtedness 
or  possession.  However  annoying  it  may  be  to  be  drawn  thus 
between  the  parties  to  a  legal  quarrel,  he  must  respect  the  sum- 
mons and  answer,  since,  if  he  has  no  property  of  the  defendant 
and  owes  him  nothing,  a  failure  to  answer  would  be  to  run  the 
risk  of  being  condemned  to  pay  the  judgment  when  rendered 
in  favor  of  the  plaintiff.  He  must  be  straight-forward,  impar- 
tial and  prompt,  whether  indebted  or  not,  though  he  may  dis- 
like to  divulge  his  relations  with  the  defendant,  and  may  be 
incidentally  harassed  by  being  precluded  from  the  immediate 
delivery  of  property  not  his  own  and  the  settlement  of  a  debt 
which  he  would  prefer  to  pay  without  delay. 

If  he  really  owes  the  defendant  or  holds  his  property,  he 
should  say  so  in  his  answer;  and  he  is  then  bound  to  hold  what 
he  has  for  account  of  whom  it  may  concern.  He  cannot  change 
property,  convert  it  into  money,  or  play  the  owner,  but  must 
consider  himself  as  the  keeper,  just  as  though  appointed  such 
by  the  sheriif  or  the  marshal  in  the  case  of  the  ordinary  seiz- 
ure of  personal  property.^  If  the  garnishment  covers  such 
chattels,  etc.^  of  the  defendant  as  may  come  into  his  hands  after 
its  service  upon  him,  he  is  equally  bound  to  hold  and  account 
for  them.  He  acquires  no  right  of  ownership,  in  any  sense; 
no  more  than  an  ordinary  custodian  appointed  by  a  seizing 
officer.  He  is  bound  to  use  ordinary  diligence  to  preserve  what 
he  thus  holds  and  is  responsible  in  damages  for  any  dereliction 
in  this  duty,  recoverable  by  the  injured  party. 

On  the  other  hand,  the  garnishee  loses  no  rights  which  he 
previously  possessed.  AVliile  bound  to  hold  what  belongs  to 
the  defendant,  he  is  not  bound  to  hold  more;  and  therefore,  if 
he  has  made  cash  advances  under  the  general  custom  of  mer- 

1  MattiDgl\'  «.  Boyd,  20  How.  128;  n.  Konns,  7  Dana,  405.  See  Staniek 
Brasbear  u.  West,  7  Pet.  608 ;  Briggs      v.  Raymond,  4  Cush.  314. 


294  THE  PROrKRTY  IN  COURT. 

chants  so  as  to  be  entitled  to  their  return,  to  commission  and 
factorage,  lie  has  an  interest  in  the  goods  he  holds  which  is  not 
subject  to  the  garnishment.  And  this  interest  is  accompanied 
by  the  right  to  sell,  according  to  the  usages  of  trade.  lie, 
an  innocent  third  person,  would  bo  injured  by  the  garnishment, 
if  such  process  prevents  him  from  getting  his  own  without 
awaiting  the  termination  of  a  law-suit  between  other  parties, 
with  which  he  has  no  concern. 

Since  the  debtor  himself  has  no  right  to  forbid  his  factor  to 
sell  under  such  circumstances,  how  can  the  debtor's  creditor 
acquire  greater  rights  through  the  process  of  garnishment? 
He  could  forbid  sale  after  iirst  tendering;  the  factor  his  advances; 
and  so  could  the  attaching  creditor.  Neither  could  go  beyond 
this  without  injury  to  the  factor;  and,  not  only  injury  to  hinj, 
but  to  commerce  and  the  public  interest. ^ 

The  general  rule  that  the  garnishee  is  bound  to  hold  and 
preserve  what  is  attached  in  his  hands,  in  the  same  condition  as 
when  served  wdth  the  summons,  without  changing  it  or  making 
any  disposition  of  it,  must  be  understood  with  reference  to  the 
usages  of  business  and  the  true  interest  of  the  parties  con- 
cerned. A  bank,  holding  a  note  deposited  for  collection, 
belonging  to  the  defendant,  which  comes  due  after  the  garnish- 
ment of  the  bank  by  an  attaching  creditor,  may  yet  sue  upon 
the  note  and  convert  it  into  money.  ^  Were  the  note  nearing 
prescription,  a  failure  thus  to  proceed  might  result  in  loss  to 
either  the  plaintiff  or  defendant,  and  would  certainly  be  a 
neglect  of  the  duty  of  preserving  what  was  meant  to  be 
attached.  In  such  case  however,  not  the  bank  but  the  defend- 
ant's debtor  should  be  made  the  garnishee. 

To  recapitulate:  A  garnishee  cannot  be  lawfully  deprived  of 
the  possession  which  he  holds  as  mere  custodian,  by  means  of 
an  execution  issued  in  another  suit  of  junior  date.^  Should  he 
be  so  deprived,  the  property  would  still  be  subject  to  the  garn- 

1  Baugh  V.  Kirkpatrick,  54  Pa.  St.      ell,  67  Pa.  St.  473. 

84.  3  Scofield    V.    Bradlee,   8    ]\Iartin, 

2  Bank  of  the  State  of  Missouri  v.  (La.)  475;  Erskinei;.  Staley,  12  Leigh, 
Breclow,  31    Mo.  5:23.     See  White  v.       4UG. 

White,  30  Vt.  338 ;  Keyser  v.  Mitch- 


SALE    OF    TEKISIIABLE    GOODS.  295 

isiiinent,*  lie  cannot  voluntarily  divest  himself  and  deliver 
the  property  to  the  defendant.  ^  He  mnst  hold  the  goods  from 
the  owner,  from  a  purchaser,  from  ever}'  claimant. ^  Even 
when  forcibly  divested,  he  will  be  presnnied  responsible  for  the 
forthcoming  of  the  property  when  reipiired;  and  the  onus  will 
be  upon  him  to  show  that  he  did  his  full  duty  as  custodian. ■* 

Sec.  4.    Sale  of  Perishable  Goods. 

The  court  may,  by  order,  cause  the  sale  of  perishable 
property  that  is  under  attachment.  Such  interlocutory  judg- 
ment is  not  against  the  defendant,  foi"  it  may  be  rendered  before 
the  appearance  or  default  of  that  party,  and  before  the  court 
-lias  acquired  any  jurisdiction  over  him.  It  may  be  rendered 
before  the  court  has  acquired  any  jurisdiction  over  the  attached 
property  in  the  sense  of  power  to  I'estore  or  condemn  it.  It 
may  be  rendered  when  the  judge's  power  is  limited  to  his  duty 
as  judicial  custodian,  charged  with  the  preservation  of  the 
property  by  agency  of  the  sub-custodians  who  are  subject  to 
his  behest. 

As  he  is  not  presumed  to  know  the  facts  as  to  the  state 
of  a  thing  seized,  he  does  not  order  preliminary  sale  without 
application  to  him  by  the  plaintiff  or  the  executive  officer 
directly  in  charge  of  it — usually  by  the  former.  The  appli- 
cation must  be  followed  by  proof  of  the  allegations  showing 
the  perishable  nature  of  the  property  and  the  necessity  for  its 
immediate  conversion  into  money.  The  order  contemplates 
nothing  more  than  such  conversion.  It  is  no  judgment  affect- 
ing the  claim  of  the  plaintiff,  nor  the  issue  made  by  the  defend- 
ant if  he  has  already  appeared  and  pleaded,  nor  any  issue  that 
he  may  afterwards  make  should  his  appearance  be  later  than  the 
sale.  Neither  the  order  nor  the  sale  affects  the  lien  of  the 
plaintiff,  except  that  they  transfer  it  from  the  thing  thus  sold  to 
the    cash    substitute.     In    this    thei-e  is    a  marked    difference 

»  Swett    ».    Brown,  5    Pick.   178;  Walcott  ®.  Kaith,  3  Foster,  196. 

Burlingame  t).  Bell,  IG  Mass.  318.  *  Despatch    Line  ■».  Bellamy  Man. 

2  Aldrick  v.  Woodcock,  10  N.  H.  99.  Co.  12  N.  H.  205 ;  Parker  v.  Kinsman. 

»  Stiles    V.    Davis,  1    Black,    101 ;  8  Mass.  486. 


296 


THE    rEOPEUTY    IN    COUET. 


between  siicli  disposition  of  nttaclied  property  and  its  delivery 
upon  tlie  execution  of  a  dissolution  bond.  The  lien  rests  on 
the  price  after  such  sale  so  that  the  purchaser  gets  the  object 
free  from  the  attachment  incumbrance,  and  all  interveners  and 
junior  attachers  must  look  to  the  proceeds;  but,  after  dissolu- 
tion by  bonding,  the  released  property  maybe  re-attached  by  other 
creditors;  they  cannot  come  in  to  claim  on  the  bond.  They 
can  only  come  in  and  thus  claim  in  case  the  release  by 
the  plaintiff  has  affected  their  rights  and  interests  in  such  a 
way  as  to  render  it  necessary  for  them  thus  to  appear,  which 
would  be  a  state  of  things  out  of  the  ordinary.  The  rule  is  that 
they  mnst  follow  the  property  itself. 

The  proceeds  are  supposed  to  be  as  valuable  as  the  article 
sold;  and,  if  this  is  true,  the  defendant,  whether  in  court  or 
not,  is  uninjured  by  the  transaction.  He  ought  to  have  oppor- 
tunity to  contest  the  alleged  necessity  of  the  sale,  because  he  is 
the  owner;  and,  when  in  court,  such  opportunity  is  always 
accorded,  and  the  order  of  sale  would  be  irregular  were  he  not 
permitted  to  oppose  it.  But  if  he  shows  no  good  reason  against 
the  solicited  order,  and  is  merely  aiming  to  reserve  to  himself 
an  action  for  damages  against  the  ofHcer,  or  the  plaintiff,  or 
both,  for  not  restoring  the  property  after  judgment  of  restora- 
tion, the  court  should,  upon  evidence  of  the  perishability  of 
the  '7'es,  order  its  transmutation  to  imperishable  cash,  notwith- 
standing the  remonstrances  of  the  owner. 

The  plaintiff  has  rights  as  well  as  the  owner;  he  has  his 
hypothetical ^^^5  ad  rem/  he  has  the  right  of  having  such  con- 
tingent lien  made  certain,  if  he  can  sustain  his  allegations; 
and,  therefore,  he  has  the  right  of  having  the  perishable  lien- 
bearing  property  preserved  in  a  new  form. 

The  owner  is  protected  from  any  abuse  of  this  extraordinary 
conversion  of  his  property  against  his  own  will.  If  the  sheriff 
should  not  use  due  diligence  and  proper  business-like  means  to 
dispose  of  the  property  at  auction  so  as  to  obtain  a  fair  price,  he 
would  doubtless  be  liable  to  respond  to  the  defendant  in  damages. 
Whether  thtre  finally  be  judgment  of  restoration  or  not,  the 
owner  may  be  damaged  by  official  misfeasance  in  the  matter  of 
the  sale;  for,  in  the  former  case,  the  owner  might  not  have  the 


SALE    OF    PERISHABLE    GOODS.  297 

fair  value  of  the  auctioned  goods  restored  to  him;  and,  in  the 
latter,  not  enouirh  would  have  ffone  to  his  credit  on  the 
jud<>-nient. 

The  owner,  if  in  court,  may  protect  himself  from  an  ill- 
advised  application  for  sale,  by  bonding-.  If  he  does  not  believe 
his  goods  to  be  perishable  yet  cannot  convince  the  court  that 
he  is  right,  he  may  take  them  into  his  own  custody  by  giving  a 
forth-coming  bond.  If  he  does  believe  them  to  be  perisha- 
ble, yet  fears  that  they  will  be  sacrificed  by  the  sheriff's  auction, 
he  may  execute  a  dissolution  bond,  and  then  dispose  of  them 
as  he  would  have  done  had  there  been  no  attachment:  work 
them  up  in  his  factory;  ship  them  to  their  original  destination 
in  time  for  the  consignee  to  subject  them  to  the  proper  and 
intended  uses;  or  he  may  sell  them  for  consumption  before 
decay. 

Doubtless  there  are  cases  working  hardship  for  which  the 
owner  has  no  adequate  remedy,  such  as  the  granting  of  the 
order  upon  facts  which  do  not  warrant  it;  the  exposure  at  auc- 
tion when  the  market  is  iinfavoi'able;  the  inability  of  the  owner 
to  protect  himself  by  bonding,  and  the  like.  But  there  are 
misfortunes  incident  to  almost  all  litigation,  chargeable  to 
our  want  of  control  over  times  and  seasons;  the  fallibility  of 
human  judgment,  and  the  inconveniences  inseparable  from 
pove'rty. 

Such  hardships  however  are  little  compared  with  the  insuffer- 
able wrong  of  usurping  jurisdiction  over  a  defendant  absent, 
and  over  his  property  present  by  its  proceeds,  and  then  justi- 
fying such*  usurpation  on  the  ground  of  the  right  to  sell  the 
property  as  perishable.  If,  without  being  summoned  or  noti- 
fied by  publication,  and  W'ithout  appearing,  the  defendant-owner 
may  have  his  property  sold  by  the  judicial  custodian  to  preserve 
it,  at  the  solicitation  and  upon  the  representation  of  those  who  are 
not  owners — of  those  who  have  not  yet  established  the  allegation 
that  they  are  even  creditors  of  the  owner  —  that  is  a  suthcient 
interference  with  private  rights  and  is  justifiable  only  on  the 
plea  of  necessity.  To  conclude,  because  a  court  may  go  so  far, 
that    it  therefore  nuxy  go  farther  and  render  final    judgment 


298  THE  PEOPERTY  IN  COURT. 

against  the  unnotified  debtor,  seems  unwarrantable,  illogical, 
and  repulsive  to  the  instinct  of  justice. ^ 

See.  6.    Loss  of  Custody. 

It  is  so  well  settled  that  there  can  be  no  valid  judgment 
against  property  when  it  is  not  in  court,  and  so  many  authori- 
ties have  been  cited  elsewhere  in  this  treatise  upon  tliis  point, 
that  it  is  unnecessary  to  repeat  them  here  to  sustain  the  prop- 
osition. 

It  is  axiomatic  that  a  thing  cannot  be  in  two  courts  at  the 
same  time.  It  cannot  be  even  constructively  in  both.  It  fol- 
lows that  if  one  court  is  divested  by  another  of  the  possession 
and  control  of  the  7'es  against  which  a  proceeding  is  pending,. 
it  cannot  afterwards  pronounce  a  decree  against  the  property. 
This  is  true  with  respect  to  all  proceedings  in  rem,  including 
those  limited  to  the  interest  of  the  debtor-owner. 

Attention  shoukl  be  called  however  to  an  exceptional  case. 
When  a  State  court  had  been  divested  of  property  attached,  by 
a  United  States  court  which  seized  the  property  as  forfeited 
to  the  Government  because  of  its  enemy  character,  it  neverthe- 
less proceeded  to  render  judgment  sustaining  the  attachment. 
J^o  notice  had  been  given  to  the  attachment-debtor  except  by 
newspaper  publication,  and  he  had  made  no  appearance. 
Keither  property  nor  a  personal  defendant  was  in  court. 

The  federal  case  not  resulting  in  a  decree  of  coniiscation, 
the  State  court  regained  tlie  property  by  a  writ  of  possession 
after  judgment  and  sold  it  under  execution  in  behalf  of  the 
attachment  creditor.     The  Supreme  Court  of  the  United  States, 

1  In  Paine  v.  Mooreland,  15  Ohio,  even     though   the   statute   required 

435,  the  court  inferred  from  the  fact  notice;  that  the  court  derived  juris- 

that   there  "was  autliority  to  sell  per-  diction  by  means  of  its  own  process, 

ishable  properly,  that  jurisdiction  to  so     that    the    defendant    could     be 

hear  and  determine  the  case  existed;  divested  of  ownership   without  his 

that  if  the  court  could  law^fuUy  order  opportunity   of  enjoyinsj   his  day  in 

such  sale,  it  could  render  final  judg-  court,  and   the   purchaser  at  the  sale 

ment    against    the    defendant    with  invested   with   a  good   title:    all   of 

privilege   on  the   property,   without  which  seems  untenable  and  averse  to 

liis  appearance,  without  service  upon  the   spirit  of  the  law  of  attachment 

bim,  and  without  publication  notice,  and  to  the  governing  statute.  • 


LOSS    OF    CUSTODY.  2D9 

in  sustaining  the  title  of  the  purchaser  under  that  sale,  re- 
marked: '-If  the  United  States  authorities  had  the  right  to 
seize  the  property  and  take  it  out  of  the  hands  of  the  law,  as  a 
])reliniinary  step  to  ])r(X'eedings  for  e<.>nllscation,  it  would  nev- 
ertheless seem  to  be  the  right  of  the  Chaucerj  Court  to 
re-assume  possession  when  the  confiscation  proceedings  i'ailed 
and  came  to  an  end.''^ 

The  question  is  not  whether  the  State  court  in  which  the 
attachment  proceedings  were  had,  (a  Chancery  Court  of  Ten- 
nessee,) could  have  regained  possession  after  having  been 
divested  and  tlioi  could  have  proceeded  to  give  judgment  in 
favor  of  the  attaching  creditor,  but  whether  such  judgment 
could  be  rendered  he/ore  regaining  possession.  The  Supreme 
Court  seemed  to  concede  that  possession  had  been  lost:  under 
such  concesoion  could  there  have  been  a  valid  attachment  judg- 
ment with  the  res  and  its  owner  both  out  of  court?  If  not, 
could  the  purchaser's  title  be  good? 

Whetlier  the  legal  possession  did  not  remain  all  the  while  in 
the  State  Chancei-y  Court  was  not  sugii-ested.  The  attachino; 
creditor  himself  intervened  in  the  confiscation  proceedings  of 
the  federal  court  and  set  up  his  attachment  lien.  If  the  lien- 
bearing  property  was  there  then,  it  certainly  was  not  also  in 
the  other  tribunal  constructively  or  otherwise.  If  not,  the 
writ  of  possession  should  have  been  issued  and  executed  before 
the  rendition  of  the  attachment  judgment. 

The  matter  resolves  itself  into  a  question  of  jurisdictioai: 
so  it  cannot  be  pursued  further  here  without  encroaching  upon 
the  domain  of  the  next  chapter. 

»  Ludlow  V.  Ramsey,  11  Wall.  581,  590. 


300  JURISDICTION. 


CHAPTER    X. 

JURISDICTION. 

§  1.    Degrees  of  Authority  at  Dif-  §  4.  Statutory  Requisites  Jurisdic- 
ferent  Stages  of  the  Suit.                         tional. 

2.  Jurisdiction  Over  the  Debtor.  5.  The  Court's  Authority  Special. 

3.  Jurisdiction  Over  the  Debtor's  6.  Territorial  Limits. 

Property. 

See.  1.    Degrees  of  Authority  at  Different    Stages  of  the 
Suit. 

A  court  lias  authority  to  entertain  applications  for  attach- 
ments when  it  is  legally  constituted  and  chjthed  with  civil 
powders  as  a  court  of  law  to  try  attachment  suits. 

It  has  authority  to  grant  them  when  the  petitions  and  affida- 
vits show  the  contemplated  suits  to  be  within  the  court's  limits 
with  respect  to  the  amount  involved,  the  territorial  bounds, 
the  property  to  be  attached,  etc.,  and  within  statute  provisions. 

It  has  authority  to  hold  attached  property  for  further  pro- 
cedure, though  there  has  been  no  defendant  served  or  notified 
by  publication;  and  even  to  sell  perishable  personal  property, 
before  any  return  to  summons  issued  or  to  publication  ordered. 

It  has  authority  to  try  the  personal  case,  when  the  defendant 
has  been  summoned  or  has  appeared,  though  no  property  has 
been  attached. 

It  has  authority  to  try  the  case  against  the  property  when  it 
lias  been  attached,  and  the  debtor  notified  by  publication 
but  not  summoned. 

It  has  authority  to  try  the  case  against  both  the  defendant 
and  the  property  when  both  are  in  court;  that  is,  when  the 
defendant  has  been  served  or  has  appeared,  and  property  of  his 
has  been  attached  and  held. 


DEGREES    OF    AUTIIOEITT.  301 

"Wherever  tlie  word  "authority"  occurs  in  tlie  foregoin<:^  para- 
graphs, ;?^?vV//('2!«!'o;i  may  be  substituted.  It  will  be  seen  that 
the  word  is  employed  in  several  diilerent  senses. 

Jurisdiction  is  a  term  of  many  signiiications.  Substituting 
it  for  "authority"  in  the  sentences  above,  it  may  be  said  that 
the  court  has  jurisdiction  to  entertain  an  application  for  a  writ 
of  attachment  and  to  grant  or  refuse  it;  jurisdiction  to  keep 
attached  property  in  custody  and  even  to  convert  it  by  sale 
before  trial;  jurisdiction  to  try  the  cause  against  the  debtor 
though  not  his  property;  or  against  it  and  not  him;  or  against 
both.  Besides,  tae  term  has  other  significations.  We  are 
accustomed  to  speak  of  admiralty  jurisdiction  or  equity  juris- 
diction as  distinguished  from  that  of  courts  at  law;  of  probate 
and  criminal  jurisdiction;  of  original  and  appellate  jurisdiction; 
of  limited  and  general  jurisdiction;  of  the  territorial  jurisdiction 
of  a  court,  speaking  in  a  general  way,  without  reference  to 
any  particular  per.ding  cause  to  be  heard  and  determined;  of 
the  federal  jurisdiction  and  that  of  the  States,  and  the  juris- 
diction of  other  nations — using  the  term  wdthout  any  special 
reference  to  judicial  authority  in  the  last  two  illustrations. 

At  the  first  stage  of  an  attachment  proceeding,  it  is  necessary 
to  the  magistrate's  right  to  receive  an  application  that  he  be 
legally  empowered  to  take  cognizance  of  it.  The  statutes  con- 
fer this  jurisdiction  on  civil  courts  specified  therein,  often 
limiting  them  to  certain  amounts,  confining  them  to  specified 
causes  of  action  and  to  certain  grounds  for  attachment,  etc. 

When  the  application,  comprised  in  the  petition  and  affidavit, 
with  the  accompmyi ng  bond,  is  in  accordance  with  law,  the 
court  has  jurisdiction  to  grant  it  by  issuing  a  summons  to  the 
defendant  and  a  writ  for  the  attachment  of  his  property. 

At  both  these  stages,  the  court  usually  acts  through  its  min- 
ister, the  clerk;  so  that  the  reception  of  the  application  and  the 
issuance  of  the  writ  and  summons  are  ministerial  acts.  The 
clerk  is  the  court's  right  hand  for  such  purposes.  Where  stat- 
utes provide  that  the  writ  and  summons  shall  be  issued  by  the 
clerk,  the  authorization  is  made  with  reference  to  his  relation  to 
the  court,  and  the  acts  are  none  the  less  judicial.  Statutes 
never  authorize  any  officer,  who    has  not  such  relation  to  the 


802  jumsDicTioN. 

court,  to  perform  ministerially  sncli  jiidit-ial  functions.  The 
issuance  of  attachments  upon  proper  showing  is  such  a  matter 
of  course  that  the  clerk  is  legally  j^resumed  to  have  the  court's 
direction  whenever  he  takes  the  aili<lavit,  tiles  the  papers,  and 
prepares  and  signs  the  writ  and  summons.  Should  he  issue  an 
attachment  when  no  statute  authority  exists,  it  would  be  said 
that  the  court  had  no  jurisdiction — not  that  the  clerk  had 
none. 

A  court  whicli  has  no  right  to  investigate  the  question 
whether  a  debt  exists,  cannot  take  jurisdiction  of  a  suit  to 
establish  a  lien  founded  on  such  debt.  *  It  must  ascertain  that 
it  has  a  right  to  proceed,  before  proceeding  in  any  cause. ^ 
Though  it  has  general  jurisdiction,  it  cannot  take  steps  towards 
establishing  an  attachment  lien  unless  the  statutory  grounds 
have  been  laid.  It  may  have  acquired  jurisdiction  over  the 
defendant,  yet  not  have  it  over  his  property  for  want  of  the 
laying  of  the  required  grounds.  If  a  creditor  tiles  a  legal 
petition  and  an  illegal  affidavit,  and  the  defendant  is  summoned, 
appears  and  joins  issue,  the  court  has  jurisdiction  to  try  the 
personal  case  but  none  to  try  the  ancillary  attachment  pro- 
ceeding. 

On  the  other  hand,  if  the  attacliment  grounds  are  well  laid, 
yet  no  petition  or  declaration  or  complaint  is  tiled,  there  is  no 
suit  of  which  the  court  can  take  cognizance.  The  court  is  com- 
petent to  entertain  a  suit,  but  it  cannot  go  on  to  hear  and 
determine  the  matter  of  the  attachment  when  there  is  nothing 
really  before  it.  If  both  petition  and  affidavit  have  been  tiled, 
and  bond  if  required,  then  the  power  of  the  court  is  limited  to 
the  issue  of  the  process,  until  there  shall  have  been  a  return 
made  by  the  officer  charged  \vith  it. 

When  the  executive  officer  has  returned  the  writ  of  attach- 
ment executed  by  the  seizure  of  defendant's  property  within 
the  court's  territorial  bounds,  the  court  becomes  judicially  pos- 
sessed of  the  property,  l)ut  not  of  magist"rial  authority  over 
the  person  of  the  defendant,  if  no  summons  has  been  issued  or 
served.     The  court  has   jurisdiction.     But  what  is   meant  by 

'  Gay  V.  Eaton,  27  La.  Ana.  166.  » Phillips  v.  Welch,  11  Nev.  187. 


DEGREES    OF    AUTriORITY.  303 

tlie  term?  It  is  somewhnt  vague  and  misleading  to  say,  witliont 
furtlier  qualification,  that  the  court  has  jurisdiction.  It  lias, 
of  the  sul)ject-nuitter,  and  of  the  property  to  a  limited  degree. 

The  authority  of  the  cuui-t  is  confined  to  the  custod}^  of  the 
property,  its  detention  and  preservation,  its  conversion  from  a 
perishable  condition  to  its  money-equivalent  when  necessary; 
and  to  the  issiumce  of  all  orders  required  to  effect  these  pur- 
poses and  bring  the  defendant  into  court  by  service;  or,  on  fail- 
ure thereof,   to  notify  him  by  publication. 

Tiie  foundation  for  power  to  hear  and  determine  the  cause  is 
laid  by  the  attachment  but  the  superstructure  is  not  thus  raised. 
The  sine  qua  non  of  the  suit  against  the  property  is  the  seizure, 
but  that  alone  confers  no  authoi-ity  to  try  the  cause.  It  is 
therefore  not  true,  in  an  unqualified  sense,  that  seizure  alone 
gives  jurisdiction  in  an  attachment  suit,  if  the  tcvm  jur{sdictio7i 
is  used  as  usually  defined:  power  to  try  the  cause. 

"When  summons  has  been  returned  showing  that  the  defend- 
ant has  not  been  found,  then  the  court  has  power  to  order  pub- 
lication according  to  the  statute  under  Avliich  the  suit  has  thus 
far  progressed.  When  the  suit  is  against  an  absent  non-resident, 
])ublication  may  be  ordered  at  once.  The  issuing  of  the  order, 
and  the  beginning  of  the  publication  of  the  notice  pursuant 
thereto,  give  tlie  court  no  furtlier  extension  of  jurisdiction  over 
the  property  attached,  and  none  whatever  over  the  person  of 
the  defendant.  The  full  publication  and  proof  of  it  by  the 
sheriff's  return  complete  the  power  of  the  court  to  hear  and 
determine  the  cause,  so  far  as  the  property  is  concerned. 

Jurisdiction,  in  the  sense  of  pow^r  to  hear  and  determine  an 
attachment  suit  both  against  the  property  attached  and  the 
defendant  personally,  is  not  in  the  court  specially  authorized  by 
statute,  until  the  defendant  has  appeared  or  has  been  served, 
and  his  property  lias  been  attached;  but  if  there  has  been  pub- 
lication, there  is  jurisdiction  to  the  amount  of  the  property 
attached. 

"Tlie  authority  advances  by  successive  steps;  and  it  is  mis- 
leading to  speak  of  jurisdiction  without  bearing  in  mind  the 
meaning  properly  attached  to  the  term  in  any  connection  in 
wliicli  it  is  used. 


304  juiiisniCTioN 

Sec.  2.    Jurisdiction  Over  the  Debtor. 

(1.)  Jurisdiction  over  the  person  of  tlie  del)tor  as  fi  p.'ivty  ifi 
acquired  by  summons  served,   or  l)y   liis  voluntary  appearance. 

Tlie  defendant  is  bronglit  into  court  by  the  means  emjiloyed 
in  any  civil  suit.  Apart  from  the  proceeding  against  his 
property,  there  is  a  distinct  action  for  debt  against  himself. 
This  action  does  not  derive  its  authorization  from  the  attach- 
ment statute.  Tlie  creditor's  right  to  sue  his  debtor  personally 
would  remain  were  such  statute  repealed.  The  principal  action 
must  exist  or  the  ancillary  one  cannot;  but  the  latter  is  not 
essential  to  the  former.  When  the  attachment  has  been  quashed, 
or  has  been  dissolved  by  a  bond  conditioned  upon  paying  what- 
ever judgment  may  be  rendered,  the  personal  action  goes  on 
unimpaired.  And,  if  not  dissolved,  there  may  be  personal 
judgment  without  any  privilege  upon  the  property  attached. 
So  the  principal  suit  does  not  differ  from  any  other  action  for 
debt;  and,  so  far  as  concerns  the  bringing  of  the  debtor  into 
court  as  a  personal  party  defendant,  the  method  is  precisely  the 
6ame  as  in  any  personal  suit. 

As  in  an  ordinary  personal  action  there  is  no  substitute  for 
service  when  he  defendant  does  not  appear,  so  in  an  attachment 
suit  there  is  none  without  his  consent  by  which  he  can  be 
brought  into  court  as  a  party.  Tliere  is  no  process,  other  than 
service,  by  which  the  court  can  acquire  jurisdiction  over  a 
debtor  who  does  not  voluntarily  appear.  If  he  voluntarily 
appear  there  may  be  personal  judgment  against  him,  though 
he  should  afterwards  withdraw  his  appearance.  ^ 

The  defendant  may  consent  to  some  substitution  of  service, 
before  it  is  made,  so  as  to  bound  by  it  when  made.  2  Kotice 
by  publication,  often  erroneously  styled  "constructive  service," 
does  not  perform  the  office  of  service;  it  does  not  render  the 
notified  absentee  amenable  to  the  court  as  a  personal  party  to 
the  suit. 

If   publication    notice    is   really  constructive    service,   what 

1  Creighton  v.  Kerr,  1  Col.  509.  How.  (U.  S.)  404;  Gillispie  v.   Com- 

'■'  Vallee  v.  Dumergue,  4  Exch.  mercial  Mutual  Marine  Ids,  Co.  12 
290 ;  Lafayette  Ins.  Co.  v.  French,  18      Gray,  201. 


OVER    THE    DEBTOR.  305 

reason  can  be  given  wlij  the  court  Avould  not  tlins  acquire  jur- 
isdiction over  the  subject  of  such  service,  so  as  to  render  a  per- 
sonal judgment  against  liim?  Why  could  he  not  be  mulct  in 
costs  and  be  legally  condemned  to  pay  any  balance  of  debt 
which  his  attached  property  is  insufhcicnt  to  satisfy?  The  term 
"constructive  service"  has  been  applied  to  publication  notice, 
not  only  by  courts  and  lawyers,  but  by  the  compilers  of  attach- 
ment statutes;  yet  the  meaning  is  usually  qualified  by  its 
connection  in  the  sentences  in  which  it  is  used.  AVhere  the 
statute  requires  that  the  summons  itself  shall  be  published 
when  the  officer  has  failed  to  find  the  defendant,  that  does  not 
malce  the  publication  anything  more  than  a  notification;  tlie 
printing  of  the  summons  cannot  convert  it  into  a  service  of  it, 
constructive  or  actual.  To  get  jurisdiction  over  the  person,  the 
court  must  have  him  served  personally  or  constructively, 
within  its  own  territorial  limits,  or  he  must  come  into  court. 
As  above  explained,  he  cannot  be  served  constructively  by 
publication ;  1  nor  can  the  court  have  him  personally  cited  in 
another  State. 

Publication  brings  nothing  into  court.  It  affords  the  ab- 
sentee opportunity  to  come;  and  it  is  important  and  necessary 
that  he  be  ofifered  his  day  in  court,  but  it  does  not  bring 
him  in.  Though  he  may  have  j)roperty  within  the  State, 
subject  to  the  jurisdiction  of  the  State,  it  is  not  subject 
to  the  jurisdiction  of  the  court  when  it  is  not  attached,  and 
the  suit  is  against  neither  person  nor  thing.  Such  a  suit, 
even  though  nominally  authorized  by  statute,  is  upon  assump- 
tion of  unwarrantable  authority,  and  is  coram  non  judice^  ah 
initic.^ 

»  Ante,  p.  270.  Eaton  v.  Badger,  33  N.  H.  228;  Re- 
2  Pennoyer  «.  Neff,  95  U.  S.  714;  pine  v.  McPherson,  2  Kan.  340;  Ab- 
Phelps  V.  Baker,  60  Barb.  107;  Bord-  bott  v.  Sbeppard,  44  Mo.  273;  Smith 
ers».  Murphy,  78  111.  81;  Clymore  «.  McCutchen,  38  Id.  411;  Miller  i). 
«.  Williams,  77  Id.  618;  Johnson  v.  Sharp,  3  Randolph,  (Va.)  41;  Hop- 
Johnson,  26  Ind.  441 ;  Judah  v.  kirk  v.  Bridges,  4  Hen.  &  M.  (Va.) 
Stephenson,  10  Iowa,  493;  Coopers.  413;  Austins.  Bodley,  4  Mon.  (Ky.) 
Smith,  25  Iowa,  269 ;  Morris  v.  Union  434;  Maude  v.  Rhodes,  4  Dana,  (Ky.) 
Pacific  R.  R.  Co.  56  Iowa,  135 ;  Bruce  144;  Hunt  v.  Johnson,  Freeman, 
c.  Cloutman,  45  N.  H.  37;  Carleton  (Miss.)  283;  Ward  v.  McKenzie,  33 
V.  Wash.  Ins.  Co.  35  N.  H.  102;  Te.x.  297. 
20 


306  JURISDICTION 

It  is  true  that  wlien  the  defcii(hiTit  is  in  court,  attacliment 
relatively  is  merely  prelim iiiary  seizure  to  aid  execution  by 
the  conservation  of  the  property,  after  the  statutory  grounds 
have  been  hiid;  but,  when  he  is  not,  it  is  essential  to  the  exist- 
ence of  the  suit;  and  the  jurisdiction  is  entirely  statutory. 
For,  the  suit  must  be  either  in  i^ersoncmi  or  in  rem:  it  is 
neither  if  both  the  debtor  and  his  proj^erty  are  out  of  court. 
The  nov^el  fact  that  attachment  suits  are  always  personal  in  form 
does  not  relieve  the  plaintifi'  from  the  necessity  of  proceeding 
really  against  a  thing,  under  pain  of  nullity,  when  there  is  no 
personal  defendant. 

It  is  urged  by  the  defenders  of  certain  statutes  nom- 
inally authorizing  personal  proceedings  against  debtors  merely 
iiotilied  by  publication,  that  there  are  analogous  proceedings 
universally  held  valid.  They  instance  suits  against  non-resi- 
dents for  divorce,  after  publication  notice.  Such  suits  are  in 
the  form  of  personal  actions  against  the  unsummoned  husband 
or  wife  as  the  case  may  be,  but  are  really  applications  to  fix  the 
personal  status  of  the  complainant.  It  would  be  more  conson- 
ant with  principle,  were  the  statute  authorizations  to  confine 
the  complainant  to  an  application  for  an  order  to  fix  such  status 
after  notification  by  publication  to  the  absent  husband  or  wife, 
instead  of  adopting  the  form  of  a  suit  against  the  absentee  who 
cannot  be  brought  into  court.  But  the  substance  governs, 
rather  than  the  form.  The  proceeding  is  substantially  to  fix 
the  status  of  the  applicant.  This  appears  iVom  the  tact  that 
the  applicant  must  be  within  the  jurisdiction  thougli  the  other 
person  to  be  afi'ected  by  the  order  need  not  be.  This  is  just 
the  reverse  of  a  personal  suit,  when  the  defendant  must  be 
within  the  jurisdiction  though  the  plaintiff  need  not  be. 

The  applicant  for  the  judicial  fixing  of  his  own  status, 
whether  a  minor  praying'to  be  emancipated;  or  a  married  per- 
son praying  to  be  declared  single;  or  a  testamentary  executor 
praying  to  be  judicially  recognized  as  such;  or  a  demented  per- 
son, (through  a  friend,)  praying  to  be  adjudged  a  lunatic;  or  an 
insolvent,  (after  notice  to  creditors)  praying  to  be  adjudged  a 
bankrupt,  must  be  one  over  whom    the  court   has  jurisdiction. 


OVER    THE    DEBTOK.  307 

It  is  not  necessary  tliat  all  tliose  to  be  affected  hy  the  decree 
prayed  for  shall  he  brought  into  court. 

Ill  a  divorce  suit,  the  court  having  power  to  hear  and  deter- 
mine with  respect  to  the  statics  of  the  applicant,  it  follows  that 
the  unsunimoued  party  to  the -marriage,  (though  not  a  party  to 
the  suit  for  want  of  summons,)  is  necessarily  affected  by  the 
decree  granting  divorce,  lie  is  necessarily  though  incidentally 
affected,  if  the  form  of  the  decree  is  with  reference  only  to  the 
applicant's  status,  instead  of  being  a  judgment  against  himself, 
as  the  form  always  is.  But  such  incidental  result  is  equivalent 
to  a  valid  personal  judgment  against  himself,  because  the  decree 
fixing  his  wife's  status  is  rendered  hy  a  court  having  jurisdic- 
tion with  respect  to  it,  and  is  therefore  binding  everywhere. 
That  is  the  theory:  not  universally  admitted,  however. 

It  will  be  seen,  therefore,  that  divorce  suits  against  non-resi- 
dents wlien  considered  in  their  true  legal  character,  and  not  in 
their  form,  are  not  analogous  to  personal  sui'ts  against  unserved 
and  non-appearing  non-resident  debtors  whose  property  is  not 
attached.  The  want  of  analogy  is  not  because  the  latter  pro- 
ceeding is  personal  and  tlie  former  m  rem,  as  some  sujjpose. 
Smts  or  applications  to  fix  the  status  of  a  person  are  not  in  rem. 
The  circumstance  that  the  de(irees  thereunder  are  universally 
binding,  and  not  liable  to  be  attacked  collaterally,  does  not  jus- 
tif\'  their  classification  with  proceedings  against  things.  They 
have  that  circumstance  in  common  with  actions  in  rem  with 
general  notice,  but  they  are  M-anting  in  other  essentials  to  entitle 
them  to  such  classification.  There  may  be  no  tldng  involved. 
Status  is  not  a  thing.  Property  may  or  may  not  be  in  ques- 
tion, but  the  proceeding  is  not,  by  legal  fiction,  against  it  as  an 
impleaded  defendant.  The  want  of  analogy  is  plain:  an  appli- 
cation to  fix  the  status  of  the  applicant  nee'd  not  have  a  defend- 
ant in  court  while  a  personal  suit  against  a  debtor  necessarily 
must.  Though  a  judgment  is  valid  against  the  property,  and 
must  have  credit  as  such  in  other  States,  it  is  invalid  as  a  per- 
sonal judgment  against  a  merely  notified  debtor  and  cannot  be 
enforced  against  him  by  execution  against  other  property  of 
his,  and  cannot  be  successfully  sued  upon  in  another  State  for 
the  excess  beyond  what  the  attached  property  has  satisfied  of 


308 


JURISDICTION 


the  debt.  And  the  reason  is  that  the  court  rendering  such 
Judgment  has  jurisdiction  over  the  property  but  none  over  its 
owner ;i  that  such  proceeding  is  in  retn  and  not  in  jpersonam^ 
though  of  the  latter  form,^ 

It  may  be  urged,  by  way  of  excusing  statutes  authorizing 
persona]  suits  upon  pul)lication  only,  that  such  suits  stand  upon 
equal  footing  with  those  in  which  the  claim  exceeds  the  value 
of  the  property  attached,  so  far  as  concerns  the  excess.  In 
other  words,  if  a  court  may  exercise  jurisdiction  after  publica- 
tion, when  the  demand  is  for  a  thousand  dollars  while  the 
property  attached  is  worth  but  half  the  sum,  though  the  judg- 
ment is  inoperative  beyond  what  may  be  made  out  of  the  prop- 
erty, why  may  not  a  court  be  authorized  to  proceed  upon 
publication  notice  without  any  preliminary  seizure,  leaving  the 
plaintiff  to  find  property  for  execution,  taking  the  risk  of  hav- 
ing his  judgment  prove  fruitless  and  inoperative?  It  is  true 
that  a  judgment  in  an  attachment  suit  is  null  and  void,  beyond 
the  value  of  .the  property  attached,  where  there  is  no  personal 
defendant;  and  it  is  true  that,  beyond  that  point,  it  stands  on 
no  better  footing  than  a  personal  judgment  nominally  against 
a  non-resident  merely  notified  by  publication;  but  the  differ- 
ence, so  far  as  concerns  the  question  of  jurisdiction,  is  that  the 
court  has  whereon  to  act  in  the  first  case,  to  the  extent  of  the 
seized  property's  value;  while,  in  the  second,  it  has  not.  The 
value  of  the  attached  property  is  not  definitely  known  till  the 
sale.  There  is  usually  an  appraisement,  but  the  plaintiff  has 
the  right  of  making  all  his  debt  out  of  it  if  he  can.  His 
demand  governs,  when  it  is  necessary  to  decide  whether  the 
suit  is  for  an  amount  sufficient  to  give  the  court  jurisdiction,  if 
there  is  a  monied  maximum  or  minimum  limit  to  the  juris- 
diction. The  appraisement  does  not  govern  this.  Difficulties 
arise  from  this  circumstance,  but  no  better  criterion  suggests 
itself.  Where  the  demand  is  for  a  thousand  dollars,  may  the 
court    take  jurisdiction,    though    that    sum    be  its  Tninimum 

iBissell  V.   Briggs,   9  Mass.    462;  (N.  Y.)  37;  Borden   v.    Fitch,    15  Id. 

Clymore   v.   Williams,   77    111.    G18;  121;   Harris  tJ.  Hardeman,   14   How. 

Coleman's  Appeal,  7.5  Pa.  St.  441.  334,  and  cases  cited  ante  chap.  I,  §  5. 

2  Kilbourn  v.  Woodworth,  5  Johns. 


OVER    THE    DKIJTOB.  309 

limit,  and  tlie  appraised  value  of  the  rt'.v  only  half  that  &\\\ni 
"When  it  has  been  demonstrated  by  sale,  after  judgirient,  that 
the  property  was  worth  less  than  the  sum  entitling  a  party  to 
sue,  while  the  demand  was  suthcient,  must  the  proceeding  be 
deemed  a  nullity?  AVhen  nothing  suilicicnt  is  seized  and 
nobody  summoned,  it  is  certain  from  the  lirst  that  there  can  be 
no  jurisdiction.  It  is  as  if  no  projterty  is  attached:  so  there 
can  be  no  judgment  against  an  unserved  and  non-appearing 
non-resident.  1  Should  a  judgment  be  rendered  under  such 
circumstances,  it  would  be  an  absolute  nullity,  to  be  disregarded 
everywhere;  and  the  so-called  defendant  miglit  impeach  it 
collaterally,  having  been  no  party  to  the  proceedings. ^  Even 
if  notice  to  an  absent  debtor  is  not  an  express  statutory 
requirement,  there  can  be  no  valid  judgment  against  him,  if  he 
does  not  appear,  is  not  served,  and  nothing  is  attached.  ^  If 
the  record  does  not  show  jurisdiction  over  the  debtor  as  a  party 
defendant,  or  over  his  property  bj'  attachment  and  compli- 
ance with  all  statutoi-y  requisites,  there  can  be  no  valid  judg 
rnent."^  But  if  the  property  or  credits  of  the  defendant  have 
been  attached  in  the  hands  of  a  third  person,  it  has  been  held 
that  jurisdiction  over  the  garnishee  gives  jurisdiction  over  the 
attachment,  though  the  defendant  live  in  another  countj'.* 
There  should  be  notice  to  the  defendant,  however. 

(2.)  The  debtor  is  not  brought  into  court  as  a  party  by  the 
attachment  of  his  property,  nor  by  both  attachment  of  it  and 
publication  notice. 

The  usage  formerly  prevailed  in  England,  and  somewhat  in 
the  ^ew  England  States,  and  occasionally   in  some  others,  of 

»  Eaton  V.  Badger,  33  N.  H.  228;  521.     But  in   Walker  v.   Cottrell,  6 

Pennoyer  v.  Neff,  95  U.  S.  731.  Bax.  257,  it  was  held  that  ancillary 

2  "Webster  v.  Reid,  11  How.  437;  attachment  is  not  leading  process  and 
Downs  r.  Fuller,  2  Met.  135;  Leon-  ''cannot  be  made  the  instrument  by 
ard  V.  Bryant,  11  Met.  371.  which  the  court  acquires  jurisdiction 

3  Carleton  v.  Washington  Ins.  Co.  of  the  person  of  the  defendant." 
35  N.  H.  162,  108.  If,    however,     notice    to    defendant 

*  Johnson  v.  Johnson  et  al.  2G  Ind.  should  follow,  what  would  be  want- 

441.  ing  tojurisdiction  over  the  property, 

5  Smith  V.  Mulhern,  57  Miss.  591;  if  statutory  prerequisites  have  been 

Barnetl  ».  Ring,  55  ]\llss.  97,  and  dis-  observedf 
tin^uishiug  Cain  i\  Simpson,  53  Miss. 


310  JltelSDICTION 

attacliiiig  an  article  of  the  defendant's  property  liowever  small, 
even  a  chip,  for  the  purpose  of  bringing  himself  into  court 
through  his  property.  lie  was  deemed  to  be  personally  in 
court  for  all  ]nirposes  when  some  insiguiiicant  article  was 
attached.  The  proceeding  thereafter  went  on,  not  against  such 
article,  but  as  a  personal  suit. 

This  usage  has  not  entered  into  the  practice  under  any  of  the 
present  existing  statutory  authorizations  of  the  several  States. 
Those  who  think  the  defendant  is  reached  by  the  attachment  of 
jjroperty  supposed  to  be  sufficient  in  value  to  satisfy  the  creditor's 
claim,  have  really  no  better  reason  for  their  theory  than  had 
the  advocates  of  the  antiquated  usage  above  mentioned.  Some- 
times we  still  see  the  doctrine  advanced  that  the  defendant  is 
brought  into  court  by  the  bringing  in  of  his  property;  and, 
wherever  this  crops  out  in  an  opinion  it  is  almost  always 
attributable  to  the  old  usage. 

Such  a  proceeding  by  nominal  attachment  is  not  a  personal 
suit  in  effect;!  ^nd  the  mere  nominal  attachment  of  an  insig- 
niiicant  article  can  give  no  personal  jurisdiction. ^ 

The  reader  will  encounter  several  decisions  in  which 
it  is  said  that  publication  notice  following  the  attachment 
of  property  is  a  substitute  for  service,  and  that  it  brings  the 
defendant  personally  into  court;  but  he  will  notice  that  nearly 


^  "Where,  under  the  laws  of  some  the  amount  set  forth  in  his  affidavit, 
of  the  States,  an  attachment  is  the  with  interest  and  costs,  if  the  de- 
first  process,  and  that  being  levied  on  fendant  is  not  served  and  does  not 
any  article  of  property,  however  appear,  and  the  judgment  can  he 
small,  gives  jurisdiction  to  the  court,  satisfied  only  out  of  the  property  at- 
a  judgment  is  obtained,  it  is  only  tached.  Rowley  v.  Berrian,  13  111. 
considered  as  a  proceeding  in  rem.  198,  203,  citing  Henrie  v.  Sweazy,  5 
*  *  Such  a  proceeding  binds  the  Blackford,  (111.)  273.  Reaffirmed  in 
property  attached;  but  beyond  that  Hobson  n.  Emporium  Real  Estate  and 
the  defendant  is  not  bound."  West-  Manuf  Co.  42  111.  805. 
erweltj).  Lewis  &  Tooker, 3  McLean,  ^  "The  nominal  attachment  of  a 
511,  514.  It  would  not  bind  the  chip,  a  stick  or  a  hat"  not  sufficient 
property  attached  as  the  res,  without  to  authorize  the  court  to  render  a 
notification  of  some  sort  to  its  owner.  valid  judgment  against  an  absent 
"The  proceeding  by  attachment  is  debtor  notified  by  publication. 
in  derogation  of  the  common  law,  Carleton  ■».  Washington  Ins.  Co.  35 
and  in  the  nature  of  a  proceeding  in.  N.  H.  1G3,  1G8. 
rera,^^  and  plaintilf  can  recover  only 


OVER    THE    DEBTOR. 


311 


all  of  such  decisions  further  say  that  in  cases  of  published 
notitication  there  can  be  no  personal  judgments  and  that  the 
decrees  must  be  confined  to  the  property  attached  i^  thus  the 
antidote  accompanies  the  poison. 

Wliy  must  the  decrees  be  conlincd  to  the  property  attached? 
Why  must  a  plaintilf,  whose  suit  is  personal  in  form,  and  who 
has  established  a  credit  due  hiin  in  a  sum  quadruple  that  of  the 
value  of  the  property  attached,  be  limited  to  the  execution  of 
that  particular  thing?  Why  may  he  not,  after  vindicating  his 
lieu  upon  the  res  by  the  sale,  proceed  to  execute  other  property 


'  In  illustration,  take  King  ®. 
Vance,  40  Ind.  246,  which  has  often 
been  oiled,  without  challenge,  to  sus- 
tain the  position  that  publication 
brings  the  attachment  debtor  into 
court.  There  is  a  single  sentence  in 
that  decision,  (introduced  by  way  of 
argument  in  the  discussion  of  the 
point  whether  the  payee  of  a  note 
may  be  garnished  before  the  note  is 
due,)  in  which  the  court  said : 
"Where  the  defendant  in  attachment 
is  a  foreign  corporation  or  a  non-res- 
ident of  the  State,  he  may  be 
brought  in  by  publication ;  and  wiieu 
thus  notified,  a  defendant  is  before 
the  court  for  all  purposes  except  the 
rendition  of  a  personal  judgment." 
Theexception  completely  neutralizes 
the  proposition;  for  if  no  personal 
judgment  can  be  rendered,  for  what 
possible  purpose  can  the  defeudant 
be  personally  in  court?  And  if  in 
court,  what  "reason  can  be  imagined 
why  judgment  may  not  be  rendered 
against  him.  as  a  party,  on  evidence 
suliicieut?  The  ijysedi.vtf, (more  prom- 
inent in  the  syllabus  than  in  tlie  text,) 
is  unsupported  by  any  citation  of  au- 
thority. Perhaps  no  one  more  than 
its  author  has  been  surprised  at  the 
large  figure  it  has  made  as  an  author- 
itii  to  shoft'  that  publication  brings 
an  attaclinient  defendant  into  cuurt 
for  all  purjKises — the  exception  being 


frequently  left  out  of  sight.  The 
court  confined  the  remark  to  foreign 
attachments,  yet  it  has  been  indis- 
criminately applied  to  attachments  in 
general.  Another  illustration  may 
be  found  in  Bruce  v.  Stewart,  3  Wis. 
773,  777.  The  lower  court  had  dis- 
missed the  attachment  because  the 
publication  made  was  deemed  insuf- 
ficient to  confer  jurisdiction.  The 
Su])reme  C.nirt  said  that  the  object 
of  the  publication  as  required  by  the 
statute,  "is  not  to  give  the  court  jur- 
isdiction of  the  writ  and  subject  mat- 
ter of  the  suit,  but  to  inform  the 
defendant,  if  possible,  that  proceed- 
ings have  been  taken  againi^t  him, 
and  give  him  an  oppoi'tunity  to 
defend."  The  imjilication  that  there 
would  have  been  jurii^^diclion  over 
the  attached  property  without  publi- 
cation, is  cured  by  the  oncluding 
statement  that  th^  object  of  the 
notice  was  to  inform  the  defendant 
and  afford  him  opportunity  to  defend ; 
for  it  cannot  be  conceived  that  ajust 
judge  could  condemn  property  abso- 
lutely (not  merely  nisi,  etc.,)  without 
such  opportunity  being  afforded. 
Later,  the  court  added  that  the 
defendant  subsequently  made  per- 
sonal appearance,  "  was  in  court,  and 
jurisdiction  was  thereby  acquired  of 
his  person." 


312  JDKISDICTION 

of  the  defendant  to  make  the  other  three-fourtlis  of  his  claim? 
Manifestly  because  he  has  no  judgment  good  against  the  unsuni- 
moned  and  non-appearing  defendant,  but  only  against  the  thing 
attached  and  incidentally  against  its  owner  to  the  amount  of  its 
value.  The  courts  virtually  say  that  the  defendant  is  not 
brought  personally  into  court  by  seizure  and  publication  when 
they  express  the  equivalent  idea  that  the  judgment  is  only  good 
against  the  attached  property,  i 

It  has  been  held  that  a  non-resident  may  appear  specially  by 
attorney  and  move  to  strike  out  a  judgment  rendered  in  an 
ancillary  proceeding  and  to  quash  execution,  without  being 
within  the  jurisdiction  of  the  court  in  respect  to  the  action  of 
assumpsit  brought  at  the  same  time  against  him  personally, 
wherein  a  summons  was  issued  and  returned  'iion  est.^  He  has 
been  allowed  to  appear  as  amicus  curia  and  successfully  move 
that  an  attachment  against  his  property  be  dissolved  and  the 
case  dismissed.  3 

Sec.  3.    Jurisdiction  Over  the  Debtor's  Property. 

The  lawful  seizure  and  continued  detention  of  the  debtor's 
property  are  essential  to  jurisdiction  over  it.     It  may  be  held 

1  Maxwell  •».  Stewart,  32  Wall.  77 ;  Scott,  49   Mo.  278;    Chamberlain  v. 

Casey  «.  Adams,  102  U.  S.  66;  Harris  Faris,  1  Mo.  517 ;  Myers  v.  Farrell,  47 

ij.  Hardeman,  11  How.  334;    Foice  ».  Miss.   281;    Bates  v.  Crow,  57   Miss. 

Gower,  23   How.  Pr.  294;    People  «.  676, 678 ;  Lincoln  ■».  Tower,  2  McLean, 

Baker,   76    N.   Y.  87;    Robinson   «.  473;  Westerwelt  «.  Lewis  &  Took er, 

National  Bank,  81  N.  Y.  391 ;  McKin-  Id.  511, 514 ;  Pancoast  v.  Washington, 

neyiJ.  Collins,  88  N.Y.  216;  Fitzsim-  5   Cr.    (C.  C.)  507;    Fisher  o.  Lane,  3 

mons  «.  Marks,  66  Barb.  333 ;  Kilburn  Wils.  297 ;  Shirley  ».  Byrnes,  34  Tex. 

v.  Woodworth,  5  .Johns.  37 ;  Borden  ®.  625 ;  Green  «.  Hill,  4  Id.  465 ;  Myers 

Fitch,  15  Id.  121;  Downer  «.  Shaw,  2  «.  Smith,  29   Ohio  St.    125;    Egan  a. 

Fos.   277;    Wilkie  «.  Jones,  1  Morr.  Lumsden,  2  Dis.  (O.)  16>*. 

(Iowa,)  97 ;  Coleman's  Appeal,  75  Pa.  2  Potomac  Steam  Boat  Co.  t.  Clyde, 

St.  441;    Phelps  v.   Holker,    1   Dall.  51  Md.  174.    See  Harris^.  Hardeman, 

Pa.  261 ;   Fitch  «.  Ross,  4  Serg.  &  R.  14  How.  343. 

557;    Miller  «.  Dungan,  36   N.  J.  L.  ^  ^.r  jOrtrife  Railroad  Co.  103   U.  S. 

21;  Bower  v.  Town,  12  Mich.  233;  794;  Des  Moines  and  Minn.  R.  R.  Co. 

Clymore    'c.   Williams,  77    111.   618;  «.  Alley,  (same  case,)  Id.     See  Nazoo 

Ilobsonw.  Emporium  Real  E.state  and  ®.    Cragin,   3    Dill.    474;    Toland    v. 

Manufacturing  Co.  42  111.  306;  Row-  Sprague,  12  Pet.   300;    Dormitzer  ?). 

ley  i\  Berriauri2  111.  198,  202;  Henry  HI.  &  St.  Louis   Bridge   Cell    Law 

'L.  Sweazy,  5  Blatchf.  273;    Massey  v.  Reporter,  672. 


OVER  THE  DEDTOR  8  rKOI'KKTY. 


313 


by  the  defendant  nnd(>r  a  fortliconiing  bond;  it  may  bo  entrusted 
to  others,  niuler  sucli  bond,  pursuant  to  statutory  authorizations, 
l)ut  the  court's  conti-ol  and  k'gal  possession  must  be  maintained 
till  judgment,  or  tlie  lion  will  fall,  and  the  suit  be  ended  so  far 
as  concerns  the  attachment. 

If,  before  judgment,  the  attached  property  should  be  destroyed 
by  fire  or  otherwise,  lost,  wasted,  stolen,  delivered  uncondition- 
ally to  the  defendant,  to  a  claimant  or  to  a  stranger;  should  be 
taken  irrecoverably  out  of  the  jurisdiction,  or  should  be,  in  any 
way,  put  beyond  the  legal  possession  and  control  of  the  court, 
so  that  it  could  not  be  subjected  to  execution  after  judgment,  the 
whole  purpose  of  the  phiintiff  in  attaching  would  be  defeated. 

Nothing  is  better  settled  than  that  the  possession  actual  or 
constructive,  must  be  maintained,  and  the  court's  control  of  it 
])reserved;  and  that  this  is  essential  to  the  attachment  lien  and 
the  jurisdiction  over  attached  property,  i 

If  any  apology  be  necessary  for  proceeding  now  to  show  that 
seizure  does  not  obviate  the  necessity  for  notice,  perhaps  it 
may  be  found  in  the  fact  that  there  are  those  who  hold  the 
affirmative. 

Seizure  and  detention  of  the  debtor's  property  are  not  pre-, 
sumptive  notice  to  liim,  under  the  attachment  laws. 


»  BoyntoD  V.  Warren,  99  Mass.  173; 
Baldwin  V.  Jackson,  13  Id.  131; 
Cutler  V.  Howe,  132  Id.  541 ;  Davis «. 
Stone,  120  Id.  283;  Hemmenway  v. 
Wheeler,  14  Pick.  408;  Walkins  «. 
Cawthorn,  33  La.  Ann.  1194;  Scott «. 
Davis,  26  La.  Ann.  688;  Nelsons. 
Simpson,  9  La.  Ann.  311;  Butler  v. 
Wiiite,  25  Minn.  433;  Wall  ».  Pul- 
liani,  5  Heisk.  365;  Ferguson  -b, 
Vance,  3  Lea,  (Tenu.)  90 ;  Roberts  v. 
Dunn,  71  111.46;  Roberts  «.  Carpen- 
ter, 53  Vt.  678;  Flanagan  v.  Wood,  33 
Vt.  333;  Montpelier  &  Wells  River 
R  R.  Co.  V.  Coffrin,  53  Vt.  17 ;  Fitcli 
v.  Rogers,  7  Vt.  403;  Charnock  v. 
Colfax,  51  Iowa,  70;  Waterhouse  v. 
Smith,  23  Me.  337;  Nichols  v.  Pat- 
ton.  18  Id.  231;  Lovejoy  v.  Hutchins, 
23  Id.  273;  Gower  v.  Stevens,  19   Id. 


92;  Chadbourne  v.  Sumner,  16  N. 
H.  129 ;  Dunklee  v..  Fales,  5  Id.  527 ; 
Becker  v.  Bailies  44  Ct.  167;  Taintor 
t\  Williams,  7  Ct.  271;  Sauford  v. 
Boring,  12  Cal.  539;  State  v.  Cornel- 
ius, 5  Oregon,  46.  "  It  is  a  settled 
rule  of  the  law  of  attachment,  that 
in  order  to  maintain  the  lien  created 
by  an  attachment  of  personal  prop- 
erty, the  officer  must,  in  some  form, 
by  himself  or  another,  retain  the  cus- 
tody of  the  property."  Sanderson  v. 
Edwards,  16  Pick.  144,  citing  Car- 
rin.ton®.  Smith,  8  Id.  419.  To  the 
same  efiect:  Bruce  v.  Holden,  21 
Pick.  190;  Bagley  v.  White,  4  Id. 
395 ;  Lane  v.  Jackson,  5  Mass.  157. 
The  same  rule  holds  as  to  the  con- 
structive possession  of  real  property 
attached.     Ante,  p.  298. 


314 


JURISDICTION 


It  is  true  that,  in  actions  in  rem  irrespective  of  persons;  in 
suits  upon  forfeiture  to  fix  the  status  of  property  so  as  to  be 
conclusive  upon  all  the  world,  it  has  been  sometimes  said  tliut 
seizure  is  notice;  notice  to  the  owner  who  is  presumed  to  know 
when  his  property  is  in  the  adverse  possession  of  another  i  —  - 
and  therefore  to  know  when  it  is  in  the  possession  of  the  court 
and  under  the  immediate  custody  of  the  seizing  officer  or  of 
some  keeper  or  bailee  holding  under  him,  for  the  court.  But, 
even  in  such  case,  and  certainly  in  suits  in  rem  respective  of 
persons,  there  should  be  notice  by  puVjlication;^  and  it  is  the 
practice  to  give  such  notice,  and  the  omission  of  it  is  not  mere 
error;  it  is  generally  fatal  to  the  jurisdiction,  though  there 
are  exceptional  cases,  such  as  those  of  prize  when  the  res  has 
been  captured  in  battle. 

On  this  subject,  Cooley  says  that  notice  is  essential  to  the 
right  to  render  judgment  in  proceedings  in  rem^  of  general 
character,  binding  upon  all  persons:  "To  render  the  jurisdic- 
tion of  a  court  effectual  in  any  case,  it  is  necessary  that  the 
thing  in  controversy,  or  the  parties  interested,  be  subject  to 
the  process  of  the  court.     Certain  cases  are  said  to  be  in  rein 


'  Bradstreet  v.  The  Neptune  Ins. 
Co.  3  Sumner,  609 ;  Cross  «.  United 
States,  1  Gall.  28;  Schooner  Bolina, 
Id.  79;  Hollinn;.sworth  v.  Barbour,  4 
Pet.  475;  Boswell's  Lessee  «.  Otis,  9 
How.  336;  Nations  «.  Johnson,  24 
How.  205 ;  Lane  «.  Shears,  1  Wend. 
433;  Scott  v.  Shearman,  2  Wm. 
Black.  977 ;  Keating  v.  Spink,  3  Ohio 
St.  114;  Thompson  v.  Steamboat 
JVLorton,  2  Id.  30;  Stewart  v.  Board, 
etc.  25  Miss.  479;  New  Orleans,  eic. 
V.  Hemphill,  35  Id.  24. 

2Gibbs  ®.  Shaw,  17  Wis.  197; 
Pope  V.  Cutler,  34  Mich.  152;  Gillett 
Vi.  Needham,  37  Mich.  143;  Sitzman 
«.  Pacquette,  13  Wis.  291;  Corwin  «. 
Merritt,  3  Barb.  341;  Sheldon  v. 
Wright,  5  N.  Y.  518 ;  Ridgeney  v. 
Coles,  6  Bosw.  486 ;  Sibley  v.  Waffle, 
IG  N.  Y.  185;  Bloom  v.  Burdick,  1 
Hill,  140;  Clark  ».  Holmes,  1  Doug. 


(Mich.)  394;  Palmer  v,.  Oakley,  2  Id. 
472;  Greenvault  «.  F.  &  M.  Bank,  2 
Id.  498;  French  v.  Hoyt,  6  N.  H.  370; 
Dakin  -y.  Hudson,  G  Cow.  222;  Doe 
«.  Anderson,  5  Ind.  34;  Babbit  x.  Doe, 
4Ind.  356;  Arnold  «.  Nye,  23  Mich. 
292;  Ryder  ®.  Fhmders,  30  Mich. 
341;  Bloom®.  Burdick,  1  Hill,  137; 
Stark  -y.  Brown,  12  Wis.  582 ;  Sherry 
v.  Dean,  8  Blatchf.  542;  Givan  «.  Mc- 
Carroll,  7  S.  Dell.  351;  Lessee  of 
Adams  ®.  Jeffries,  12  Ohio,  258; 
Warner  «.  Webster,  13  Id.  505 ;  Mes- 
senger -y.  Klinter,  4  Bin.  97;  Schnei- 
der v.  McFarland,  2  Comst.  459; 
Bank  v.  Johnson,  7  S.  &  M.  449 ;  Ed- 
wards  ®.  Toomer,  14  Id.  75;  Ridley 
®.  Ridley,  24  Miss.  648;  Calhoun  ». 
Ware,  34  Id.  146;  Martin  «.  Dryden, 
6  111.  187;  King  «.  Harrington,  14 
Mich.  532;  Clark  ».  Bryan,  16  Md. 
171. 


OVER  THE  debtor's  PROrEUTY.  315 

becjuise  they  take  notice  rather  of  the  thing  in  controversy 
tlian  of  the  persons  concerned;  and  the  pi-ucess  is  served  upon 
than  which  is  the  object  of  the  suit,  without  specially  noticing 
tlie  interested  parties;  while  in  other  cases  the  parties  thenj- 
selves  are  brought  before  the  court  by  process.  Of  the  first 
class,  admiralty  proceedings  are  an  illustration;  the  court 
acquiring  jurisdiction  by  seizing  the  vessel  or  other  thing  to 
which  the  controversy  relates.  In  cases  wit Jtin  t/tis  class,  notice 
to  all  concerned  is  required  to  he  given,  either  2><irsonaUy  or  hy 
some  species  of  publication  or  proclamation ;  and  if  not  given, 
the  court  which  had  jurisdiction  of  the  property  will  have 
none  to  enter  judgment.''^  ^ 

It  will  be  observed  that  the  term  "jurisdiction"  is  used  in  a 
limited  sense  when  expressing  the  judicial  power  consequent 
from  seizure,  but  in  its  full  signification- — power  to  hear  and 
determine  the  cause  —  at  the  close  where  it  is  said  that  the 
court  "  will  have  none  to  enter  judgment"  unless  notice  has 
been  given. 

The  class  which  includes  those  admiralty  proceedings  which 
are  against  things  and  conclusive  of  all  persons,  also  includes 
proceedings  at  law  against  things  seized  upon  land;  and  the 
same  rule  prevails.  The  statutes  of  the  United  States  contain 
many  authorizations,  and  the  reports  many  illustrations,  of 
proceedings  at  law  of  this  character.  Admiralty  causes  directly 
against  property  are  not  peculiar,  as  some  who  refer  to  them 
seem  to  assume;  they  belong  to  a  class,  as  observed  in  the  quo- 
tation above  made.  Many  of  the  class  are  upon  liens.  That  is, 
they  are  against  things  indebted  by  legal  fiction.  I*^otice  is 
more  apparently  necessary  in  these  than  in  suits  for  forfeiture. 

It  might  be  said  that  as  an  attachment  proceeding  is 
limited  to  the  defendant — to  the  owner  of  the  property  attached, 
and  does  not  extend  to  lien-holders  and  all  others — the  pre- 
sumption that  the  owner  knows  wdien  his  property  is  seized 
will  apply  to  him  and  render  publication  unnecessary;  that  the 
analogy  between  such  a  suit  and  proceedings   upon  forfeiture 

*  Cooley's  Const.  Limitations,  5th      used  in  his  text. 
Ed.,  pp.  497,  498.    The  italics  are  not 


316  JUKISDIOTION 

and  the  like,  will  hold  good  so  far  as  the  attachment  debtor 
occupies  a  like  position  with  the  owner  of  forfeited  property 
from  whom  it  is  taken.  But  the  fact  that  the  attachment  suit 
is  witliout  jus  in  re  and  witliout  any  perfected ^'i^s  ad  rem^  and 
is  personal  in  form,  and  meant  to  be  mainly  so  in  elfect  to  the 
end  ill  judgment,  destroys  the  analog3\  The  further  fact  that 
the  legislator,  in  authorizing  attachments,  never  contemplated 
that  the  presumptive  knowledge  arising  upon  seizure  should 
supersede  the  necessity  of  summons  or  publication,  (since  the 
latter  is  positively  required  by  statute  when  the  former  has 
failed,)  precludes  the  assumption  that  a  court  can  acquire  com- 
plete authority  to  condemn  property  to  pay,  under  the  form  of 
a  personal  judgment,  upon  the  mere  act  of  attaching. 

Besides,  could  the  analogy  be  invoked,  it  would  go  much 
farther  than  its  friends  seem  to  imagine.  Those  who  hold,  in 
proceedings  in  rem  irrespective  of  persons,  that  seizure  alone 
gives  jurisdiction,  (in  the  sense  of  authority  to  hear  and  deter- 
mine the  cause,)  mean  not  only  that  seizure  gives  it  witliout 
publication'  but  without  summons  also.  No  summons  is  re- 
quired in  sucli  cases,  for  no  person  is  sued.  Are  the  advocates 
of  the  analogy  prepared  to  say  that  if  the  defendant  of  an 
attachment  suit  is  present  and  accessible  to  ordinary  process, 
the  attaching  of  his  goods  obviates  the  necessit^^  of  summons? 
that  the  court  can  acquire  jurisdiction,  in  this  way,  to  try  the 
cause  ? 

Actions  in  vindication  of  existing  liens,  with  general  notice, 
such  as  admiralty  suits  in  which  the  lien  bearing  property  is 
libelled  and  impleaded,  approach  nearer  to  attachment  suits 
than  do  those  just  considered.  They  are  against  things  indebted, 
and  aim  to  have  the  property  not  absolutely  condemned  but 
merely  condemned  to  pay  the  debt;  and,  in  these  respects,  they 
resemble  attachment  suits. 

Though  the  attaching  creditor  proceeds  against  the  debtor's 
interest  in  property,  he  is  not  a  lien-holder  before  attaching  it, 
nor  is  his  lien  complete  after  attaching  and  before  judgment. 
In  the  suit  on  an  admiralty  lien,  the  owner  of  the  lien-bearing 
property  knows  of  the  existence  of  the  lien  and  of  the  liability 


OVER  THE  dertok's  property.  317 

of  that  particular  property  to  be  seized  for  the  purpose  of  it9 
vindication.  Tlie  attachment  defendant,  being  an  ordinary 
debtor  cannot  be  presumed  to  know  that  a  creditor  will  attera])t 
to  create  a  Hen  upon  any  of  his  property — much  less  can  he  be 
presumed  to  loiow  on  what  particular  property  tlie  creditor  will 
attempt  to  create  a  lien.  After  the  levy  of  the  attachment, 
there  is  reason  for  the  presnmption  that  seizure  imparts  knowl- 
edge of  seizure  to  him,  but  the  proceeding  is  solely  upoii  statu- 
tory authority  which  requires  publication  as  well  as  seizure. 
Suits  on  admiralty  liens  are  not  statutory,  and  are  in  courts  of 
general  powers.  There  is,  with  regard  to  the  lien,  this  remark- 
able difference:  an  admiralty  libel  against  indebted  property  is 
to  vindicate  an  existing  lien,  while  an  attachment  proceeding  is 
to  create  a  lien;  the  former  is  "  irrespecti\'e  of  persons"  in  the 
sense  that  it  takes  no  note  of  particular  ownership  but  is  against 
the  property  seized  and  "  all  persons  having  or  pretending  to 
have  any  right,  title  or  interest  in  or  to  the  property  seized 
therein,"  while  the  latter  is  confined  to  the  debtor's  interest  as 
the  res  and  is  not  against  the  right,  title  and  interest  of  any 
other  person — not  against  the  property  at  all  if  it  belongs  to 
some  other  person  than  the  debtor.  The  attachment  snit,  then, 
instead  of  being  "  irrespective  of  persons,"  is  emphatically  with 
respect  to  the  debtor,  sued  in  the  personal  suit.' 

The'  sale  of  perishable  property,  by  order  of  court,  before  any 

■  *  In  Walker  v.  Cottrell,  6  Bax.  257,  ties.  See,  on  this  subject,  the  next 
the  Supreme  Court  of  Tennessee  section,  and  the  note  on  these  two 
combats  the  position  in  Cooper  v.  discordant  decisions.  In  Micky  v. 
Reynolds,  10  Wall.  80!;5,  (in  which  Stratton,  5  Saw.  475,  the  court,  try- 
publication  notice  was  thought  to  be  ing  to  follow  Cooper  v.  Reynolds, 
not  jurisdictional  because  the  pro-  suj)ra,  and  Penuoyer  «.  NetF,  (95  U. 
ceeding  in  the  attachment  suit  under  S.  731,)  and  evidently  mistaking  the 
consideration  had  been  in  rem,)  by  latter,  said:  "By  a  valid  attachment 
trying  to  maintain  that  attachment  of  property  within  its  jurisdiction,  a 
suits  are  in  personam  in  that  State,  State  court  acquires  jurisdiction  to 
when  the  debtor  is  notified  only  by  give  judgment  that  an  absent  defend- 
publicatiou.  This  untenable  argu-  ant,  not  otherioise  served  loith  jyvocess 
ment  was  uncalled  for,  since  notice  in  the  proceeding,  is  indebted  to  the 
is  necessary  when  the  proceedings  plaintifT  therein,  and  to  enforce  the 
are  in  rem,  as  has  been  herein  well  payment  of  the  same  by  the  sale  of 
established  by  the  citation  of  authori-  such  property'." 


318  JUKISDICTION 

coiulemnation  of  it,  or  before  any  merging  of  an  attaclinient 
lien  into  a  judgment  lien,  may  be  made  without  publication 
notice  to  an  absent  defendant.  Such  sale  always  rests  npon 
necessity  for  its  justilication.  Ordinarily  there  is  no  necessity 
for  such  haste  that  there  must  be  sale  after  attachment  and 
before  publication;  but,  admitting  the  necessity  in  any  case, 
the  want  of  notice  to  the  owner  would  not  render  invalid  the 
title  acquired  by  the  purchaser  at  the  sale.  But  this  forms  no 
exception  to  the  general  rule  that  publication  is  essential  to  the 
validity  of  a  Judgment  in  an  attachment  suit  against  the  prop- 
erty of  a  non-resident  not  served  with  process.  It  is  not  an 
exceptional  judgment  divesting  the  owner  of  his  rights,  for  he 
owns  the  proceeds  after  his  perishable  property  has  been  con- 
verted into  cash.  The  tjiing  sold  would  have  perished  had  it 
not  been  sold.  The  purchaser  has  obtained  the  title  which  the 
former  owner  had,  but  not  by  virtue  of  an  attachment  judg- 
ment against  the  property. i 

It  has  been  thought  that  when  property  has  been  attached 
and  brought  into  court  but  the  debtor  owner  not  reached,  the 
court  has  jurisdiction  over  it  irrespective  of  the  owner  because 
there  is  power  to  order  its  sale  if  it  is  perishalde.  It  is  need- 
less to  say  that  the  court's  right  to  sell  is  for  the  preservation 
of  the  property  by  changing  it  from  its  perishable  condition  to 
money  which  remains  in  custody  as  its  substitute. 2  There  is 
no  hearing  and  determining  the  question  of  the  validity  of  the 
plaintiff's  claim,  nor  of  the  liability  of  the  property  attached. 
There  is  no  exercise  of  jurisdiction  in  the  sense  in  which  juris- 
diction is  exercised  when  there  is  final  judgment  in  the  case.^ 

^  In  Megee  v.    Beirne,  39  Pa.    St.  vindication.  This  case  does  not  teach 

50,  62,  it  is  said  that  sucli   order  and  that    there    may    be    condemnation 

sale  of  perishable  property  is  a  pro-  without  notice. 

ceeding  in  rem,  and  that  the  pur-  2  gbould  the  defendant  subsequent- 
chaser  takes  title  against  all  persons,  ly  appear  and  gain  his  suit,  he  would 
etc.  It  is  a  mere  order  for  the  sale  certainly  be  entitled  to  the  proceeds 
of  property — there  is  no  condemna-  of  his  property  sold  as  perishable 
tion  of  it.  Notice  is  necessary  in  under  an  interlocutory  order.  Cross 
any  proceeding  m  rem  leading  to  a  «.  Elliott,  69  Me.  387. 
valid  decree  of  condemnation,  ^  Oeters  v.  Aehle,  31  Mo.  380; 
whether  of    forfeiture   or    of    lien-  Ante,  p.  295. 


OVER    THE    UEBTOli's    I'liOl'EKTY.  319 

It  is  uiiiuillj  froiTi  tlie  final  jndgineiit  that  tlie  pnrcliaser 
derives  tlie  title  which  he  has  to  defend  against  collateral 
attacks.  It  is  clear  that  it  is  essential  to  his  title  that  the  court 
should  have  had  jurisdiction  to  hear  and  determine  the  issue 
made  between  the  plaintiff  and  del'endant,  or  to  pronounce 
default  and  confirm  it  in  the  absence  of  issue,  after  due  sum- 
mons or  notice  to  the  defendant.  The  case  of  the  purchaser  at 
a  sale  of  perishable  property,  ordered  to  ir\av]<.et  jjendeiite  lite, 
is  not  under  discussion.  His  title  rests  on  very  dilFerent 
principles  from  those  above  suggested. 

The  assertion  frequently  made,  that  jurisdiction  over  the 
property  of  a  no:i-resident  is  acquired  by  attachment  whether 
publication  folio vrs  or  not,  must  be  nnderstood  in  a  qualified 
sense.  In  States  where  attachment  suits  against  non-residents 
are  allowed  to  proceed  to  judgment  nisi,  when  there  has  ijeen 
no  publication,  it  is  necessary  to  exact  of  the  attaching  creditor 
a  bond  by  which  he  obligates  himself  to  refund  whatever  he 
may  acquire  by  the  sale  of  the  property,  should  the  absent 
owner  appear  and  set  aside  the  judgment  within  a  year.  And 
the  execution  of  such  bond  is  made  an  indispensable  prelimin 
ary  to  any  proceeding  against  the  attached  property  after  such 
judgment.  This  shows  plainly  enough  that  the  jurisdiction  of 
the  court  is  not  such  as  to  enable  it  to  render  final  judgment  by 
virtue  of  attachment  ak)ne,  without  notice. ^ 

In  all  attachment  suits,  it  is  absolutely  essential  to  jurisdic- 
tion in  the  sense  of  the  court's  authority  to  hear  and  finally 

1  AValters  ■;;.  Monroe,   17    Md.    505,  have  the  case  reheard,  etc.     Beech 

(in  which  there  is  a  copy  of  such  an  v.  Abbott,   G  Vt.  586,  592,  was  a  case 

attachment   judgnipnt  nisi;)   Camp-  of   foreign    attachment,  based   on   a 

bell  D.  Robert  Morris,    3  Harris   &  statute  authorizing  proceedings  sim- 

McHenry,  (Md)  553;  Potomac  Steam-  ilar  to  those  under  the  custom   of 

boat  Co.  ■».  Clyde,  51  Md  174;  Hhrris  London,  and   partaking  of  the  char- 

V.  Hardeman,  14  How.  343;  Hiller  v.  acter  of  the  old  distraint  laws.  Some 

Lampkin,  54  Miss.  14,  (in  exposition  "speckled  cattle"  had  been  attaciivjd 

of  Code  of  1871,  §   1479,)  in  case  of  or  distrained  to  "compel  appear;;iK-'j" 

default,  even  though  there  has  been  on  the   part  of    the  alleged  debtor, 

publication  notice,  bond  is  required  ;  There  was  judgment  nisi,   and   the 

Anderson  v.  Johnson,  33  Gratt.  558,  attaching  creditor  was  required   to 

in  which  it  is  held  that   a  non-resi-  give  bond  before  sale.     Under  these 

dent  mn}'  appear  after  judgment  and  circumstances,   the    court,  rightfully 


320  JURISDICTION. 

deterinine  tlie  cause  against  the  jpropertij^  tluit  tlie  defendant 
eittier  be  suinmoned  or  notified  l)y  ])ul)lication,  wlien  lie  does 
not  appear.  It  is  universally  conceded  to  be  so,  when  the 
statute  positively  requires  it.  It  is  so,  too,  when  the  require- 
ment is  not  positively  expressed  hut  is  implied.  It  is  so,  also, 
even  though  the  statute  itself  is  silent  on  the  subject. 

That  this  is  imperative,  appears  on  consideration  of  the  gen- 
eral principle  that  every  one  to  be  affected  directly  by  the  judg- 
ment must  be  afforded  an  opportunity  to  be  heard;  must  be 
offered  his  day  in  court;  must  be  allowed  full  privilege  and 
time  to  defend  his  property,  which  implies  previous  notice  of 
the  hearing.  It  also  appears  in  consideration  of  tlie  peculiar 
nature  of  the  attachment  proceeding.  It  is  nominally  against 
the  debtor,  though  in  effect  against  his  property  in  case  he  is 
not  summoned  and  does  not  respond  to  notice;  but  the  law 
favors  the  personal  feature  of  the  suit,  and  requires  that  an 
opportunity  be  given  for  the  defendant  to  preserve  its  personal 
character  to  the  end.  He  is  invited  to  come,  not  as  a  mere 
claimant  of  the  property  as  in  proceedings  upon  forfeiture  and 
the  like,  but  as  the  defendant  to  the  action — as  one  personally 
sued. 

Courts  cannot  rightfully  exercise  jurisdiction  if  they  pos- 
sess it^  without  publication  notice,  where  there  is  no  sum- 
mons served  and  no  appearance,  i  This  rule  applies  to  all 
courts,  whether  of  limited  or  general  jurisdiction.  Procedure 
to  judgment  without  notice,  under  such  circumstances,  is  error 

or  ■wrongfully,  deemed  prior  notice  jams  «.  Stewart,  3  Wis.  773;  Massey 
to  the  debtor  a  non-essential.  t'.  Scott,  49  Mo.  278;  King  «.  Har- 
Strangely  enough,  this  case  has  rington,  14  Mich.  532;  Cooper©.  Key- 
long  been  cited  to  sustain  the  iinten-  nolds,  10  Wall.  308,  319:  If  tliere  is 
able  position  that  notice  is  not  juris-  no  publication,  or  no  publication 
dictional  in  attachment  suits  in  properly  made,  in  substantial  com- 
which  there  is  final  judgment.  pliance  with  statutory  requirement, 
1  Potomac  Steamboat  Co.  v.  Clyde,  a  court  of  errors  may  reverse  a  judg- 
51  Md.  174;  Harris  v.  Hardeman,  14  ment  rendered  M'ithoutit.  (See  note, 
How  343;  Ex  parte  Railroad  Co.  103  post,  with  reference  to  want  of 
U.  S.  794;  Edwards  v.  Toomer,  22  notice  in  case  of  collateral  attack,  in 
Miss.  75;  Ridley  -y.  Ridley,  24  Miss.  which  this  case  seems  to  say  that 
648;  Calhoun  «.  Ware,  34  Id.  146;  publication  is  not  jurisdictional.) 
Martin  v.  Dryden,   6    111.  187;  Will- 


STATUTORY    REQUISITES    JURISDICTIONAIu 


321 


for  wliicli  the  decree  in  favor  of  the  attacliing  creditor  may  be 
reversed  on  ap])eah  This  doctrine  is  well  established  and  uni- 
versally conceded.  The  reversal  may  be  had,  in  such  case, 
whether  notice  was  essential  to  jurisdiction  or  not;  for,  when 
jurisdiction  has  vested,  error  in  its  exercise  is  fatal  on  appeal. 
Omission  to  give  notice  upon  default  of  summons  is  in  viola- 
tion of  a  requirement  common  to  the  statutes  authorizing 
attachment,  and  obligatory  upon  superior  as  well  as  inferior 
courts.  Such  omission,  or  even  an  insufficient  com])liance  with 
this  statutory  requirement,  renders  the  judgment  voidable.  ^ 
And  the  appellate  court  will  look  to  the  record  to  ascertain 
whether  the  required  notice  was  given  and  whether  it  was 
sufficient.  However,  since  the  hypothesis  is  unfounded,  such 
judgments  are  absolutely  void. 

Sec.  4.    Statutory  Requisites  Jurisdictional. 

It  is  settled  that  all  the  statutory  pre-requisites  to  attach- 
meet  are  jurisdictional;  that  they  are  not  to  be  presumed  after 
judgment  jurisdictionless  for  want  of  them;  and  that  such  jud"-- 
ment  may  be  collaterally  attacked.  ^ 


lid. 

2  Clark  V.  Thompson,  47  111.  26; 
Schnell  i.  City  of  Chicago,  38  Id.  383 ; 
Morris  v.  Hogle,  37  Id.  150;  Cariker 
T).  Anderson,  27  Id.  358;  Rowley  v. 
Berrian,  12  Id.  198;  Vairin  v.  Ed- 
monson, 5  Oilman,  270;  Lawrences. 
Yeaiman,  2  Scam.  15;  Haywood  v. 
Collins,  60  111.  328;  Haywood  v.  Mc- 
Crory,  33  Id.  459 ;  Borders  tj.  Murphy, 
78  Id.  81 ;  Clymore  v.  Williams,  77 
Id.  618;  Roberts  v.  Dunn,  71  Id.  46; 
Henrie  v.  Sweazy,  5  Blackf.  273; 
llobson  V.  Emporium  Real  Estate 
and  Manuf.  Co.  42  111.  306;  Martin  v. 
Dryden,  6  Id.  187;  Johnson  v.  John- 
son, 26  Ind.  441 ;  Mitchell's  Admr.  v. 
Gray,  18  Id.  123;  Millar  v.  Babcock, 
29  Mich.  526;  King  v.  Harrington,  14 
Id.  532;  Buckley  v.  Lowry,  2  Mich. 
418;    Roelofson  il  Hatch,  3  Id.   277; 

21 


Bower  v.  Town,  12  Mich.  233;  Van 
Norman  v.  Jackson  Circuit  Judge, 
45  Mich.  204;  Gay  «.  Eaton,  27  La. 
Ann.  166;  Scott  v.  Davis,  26  Id.  688; 
Nelson  v.  Simpson,  9  Id.  311;  New- 
man  v.  Kraim,  34  La.  Ann.  910; 
Hemshein  v.  Levy,  32  Id.  340;  Walk- 
er V.  Barrelli,  Id.  467 ;  Walker  v.  Day, 
Griswold  &  Co.  8  Bax.  77;  Walker  u. 
Cottrell,  6  Bax.  257 ;  Wall  v.  Pulliam, 
5  Heisk.  365;  Ferguson  «.  Vance,  3 
Lea,  99 ;  Grubbs  v.  Colter,  7  Bax.  432 ; 
Biveus  V.  Matthews,  7  Id.  256;  Wil- 
son V.  Beadle,  39  Tenn.  510;  Pa.  Steel 
Co.  V.  N.  J.  Southern  R.  R.  Co.  4 
Houston,  (Del.)  572;  Clark  v.  Bryan, 
16  Md.  171 ;  Potomac  Steamboat  Co. 
V.  Clyde,  51  Md.  174;  Smith  v.  Eas- 
ton,  54  Md.  138;  Marx  v.  Abraliam, 
53  Tex.  264;  Bruhn  v.  Jefferson 
Banl<,    54   Tex.    152;    Ward   v.    Uo 


322 


JURISDICTJON. 


It  is  begging  tlie  question  to  say  tliat  seizure  gives  jurisdic- 
tion so  as  to  render  atiidavit,  bond,  etc.,  presninable  after  decree, 
when  they  are  statutory  pre-reqnisites  to  seizure,  and  therefore 
to  jurisdiction.  It  cannot  be  assumed  that  seizure  has  given 
jurisdiction,  when  the  real  question  is  whether  there  has  been 
any  autlu)ritv  to  seize  or  to  proceed  in  the  attachment  case  at 
all  without  compliance  with  statutory  requirements  on  the  part 
of  the  attaching  creditor.  Such  presumption  has  been  indulged 
when  the  attachment  defendant  had  been  served  and  brought 
personally  into  court.     No  douljt  service  gave  jurisdiction  of  the 


Kenzie,  33  Id.  297 ;  Shirley  v.  Byrnes, 
34  Id.  G25;  Green  v.  Hill,  4  Id.  4G5; 
Wliittenberg  v.  Lloyd,  49  Id.  633; 
Anderson  «.  Coburn,  27  Wis.  558; 
Williams  v.  Stewart,  3  Id.  773;  War- 
ner V.  Webster,  13  Ohio,  505 ;  Myers 
■«.  Smith,  29  Ohio  St.  125;  Egan  v. 
Lumsden,  2  Dis.  (O.)  1C8 ;  Wescott  v. 
Archer,  12  Neb.  345 ;  Marsh  ■■.  Steele, 
9  Neb.  96 ;  Hilton  v.  Ross,  9  Neb.  406 ; 
Spiegelberg  ®.  Sullivan,  1  New  Mex- 
ico, 575;  Phillips  v.  Welch,  11  Nev. 
187 ;  Moresi  v.  Swift,  15  Nev.  215 ; 
Levy  «.  Elliott,  14  Id.  435;  Criegh- 
ton  i).  Kerr,  1  Cal.  509;  People  v. 
Baker,  76  N.  Y.  87 ;  Robinson  v.  Nat. 
Bank,  81  Id.  391;  McKinney  v.  Col- 
lins, 88  Id.  216;  Phelps  v.  Baker,  60 
Barb.  107;  Pitzsimraons  v.  jVIarks, 
66  Id.  333;  Bogart  v.  Swezey,  26 
Hun.  463;  Kilbourn  ■».  Wood  worth, 
5  Johns.  37;  Borden  ®.  Fitch,  15  Id. 
121;  Force  v.  Gower,  23  How.  Pr. 
294;  Zeregal  v.  Benoist,  33  Id.  129; 
Lampkin  ?;.  Douglass,  27  Hun.  517; 
Bennett  7).  Edward^-s  Id.  352;  (but  see 
Carr  v.  Van  Hoeson,  26  Id.  316;)  Bis- 
sell  «.  Briggs,  9  Mass.  462;  Downs 
v.  Fuller,  2  IMet.  135;  Leonard  v. 
Bryant,  11  Id.  371;  Boynton  v.  War- 
ren, 99  Mass.  172;  Cutter  ■».  Howe, 
122  Id.  541;  Davi's  v.  Stone,  120  Id. 
288;  Bruce  v.  Cloutman,  45  N.  II.  37 ; 
Carleion  -y.  AVash.  Ins.  Co.  35  Id.  162; 
Eaton  t).  Badger,  33   Id.  228;    Chad- 


bourne  «.  Sumner,  16  Id.  129; 
Dunklee  v.  Fales,  5  Id.  527;  Downer 
V.  Shaw,  2  Fo3.  277;  Becker  v.  Bail- 
ies, 44  Ct.  167;  Taintor  %.  Williams, 
7  Ct.  271 ;  Roberts  v.  Carpenter,  53 
Vt.  678 ;  Flanagan  t).Wood,  33  Id.  332 ; 
Moutpelier  &  Wells  River  R.  R.  Co, 
V.  CotlVin,  52  Id.  17 ;  Fitch  ®.  Rogers, 
7  Id.  403;  Coleman's  Appeal,  75  Pa. 
St.  441 ;  Phelps  ^).  Holker,  1  Dall.  (Pa.) 
261 ;  Fitch  V.  Ross,  4  S.  &  R.  557 
Waterhouse  «.  Smith,  22  Me.  337; 
Nichols  «.  Patton,  18  Id.  231;  Love- 
joy  V.  Hutchins,  23  Id.  272;  Gower?;. 
Stevens,  19  Id.  92;  (but  see  Mitchell 
V.  Sutherland,  74  ]\Ie.  100;)  Miller  •?). 
Dungan,  oG  N.  J.  L.  21 ;  Judah  v. 
Stepiienson,  10  Iowa,  493;  Cooper  w. 
Smith,  25  Id.  269;  Morris  i).  Union 
Pacific  R.  R.  Co.  56  Id.  135;  Wilkie 
V.  Jones,  1  Morr.  (Iowa,)  97;  Char- 
nock  T.  Colfax,  51  Iowa,  70;  Darrance 
V.  Preston,  16  Id.  396;  Hakes  v. 
Sliupe,27  Id.  4G5;  Repine  v.  McPher- 
son,  2  Kan.  34U;  Keith  v.  Stetter,  25 
Kan.  100;  Beckwith  v.  Douglas,  25 
Kan.  229;  Race  t\  Maloney,  21  Id. 
31;  Bundrem  v.  Denn,  25  Id.  430; 
Butler  V.  White,  25  Minn.  432 ;  Hines 
V.  Chambers,  29  Id.  7;  Iloffner  v. 
Guuz,  Id.  108;  Auerbach  v.  Hitch- 
cock, 23  Id.  73;  Al)l)ott  v.  Sheppar^. 
44  Mo.  273;  Smith  /;.  McCmchen,  38 
Id.  415;  Mat^sey  v.  Scott,  49  Mo.  278; 
Chamberlain    v.   Paris,    1    Id.   517; 


STATUTORY    REQUISITES    JURISDICTKJNAL.  323 

personal  action:  but  how  could  it  giv^e  it  in  tlic  ancillary  ])ro- 
ceeding?  IIuw  could  that  enable  the  creditor  to  acquire  a  lien 
upon  iiniucuuibered  property  before  judgment?  How  could 
that  disjuMise  M'ith  the  statutory  es.-eutials  of"  an  attachment? 
How  could  the  execution  of  a. writ  of  summons  render  a  writ 
of  attachment  valid  without  an  athdavit  such  as  tlie  statute  ren- 
dered indispensable? 

If  jurisdiction  over  the  person  of  the  defendant  in  an  action 
for  debt  renders  whatever  is  necessary  to  the  exercise  of  it  pre- 
sumable after  decree,  (as  it  unquestionably  does  so  far  as  the 
personal  action  is  concerned,  in  a  court  of  general  jurisdiction,) 
does  it  follow  that  the  plaintiff  may  sue  out  an  attachment  in 
such  case  and  neglect  the  affidavit  with  impunity?  that  he  can 
liave  his  ancillary  attachment  suit  without  compliance  with  the 
pre-rec|uisites?  that  a  writ,  issued  and  executed  without 
authority,  is  to  be  presumed  authoritative  because  personal  judg- 
(uent  has  been  rendered  against  the  defendant?  that  com- 
peting attachers  must  respect  the  lien  thus  created  and  let  it 
outrank  theirs  on  the  plea  of  priority?  that  assignment  before 
judgment  must  be  set  aside  on  the  plea  that  seizure  has  been  per- 
fected by  the  personal  judgment,  or  even  by  a  judgment  in  the 
ancillary  proceeding  in  which  the  statutory  requisites  to  juris- 
diction had  been  disregarded? 

Instead  of  assuming  that  seizure,  right  or  wrong,  gives  jur- 
isdiction over  property  and  creates  a  lien,  the  first  step  is  to 

Oeters  v.  Aelile,  31  Mo.  380;  Clark  v.  212;  Merced  Bank  v.  Morton,  58  Id. 
Brott,  71  Mo.  473;  Miller  v.  Sharp,  3  3G0;  State  v.  Cornelius,  5  Oregon,  40, 
Raudolpb,  (Va.)  41;  Hopkirk  v.  Dow  v.  Whitmau,  3(3  Ala.  C04, 
Bridges,  4  Hen.  &  M.  413;  Faulk  v.  Wright  v.  Smith,  GG  Ala.  545;  John- 
Smith,  84  N.  C.  501 ;  Devries  ».  Sum-  son  v.  Hanna,  Id.  127;  Flexner  & 
mit,  86  N.  C.  12G;  Metts  ®.  Ins.  Co.  Lichten  v.  Dickerson,  65  Ala.  1,9; 
17  S.  C.  120 ;  Claussen  v.  Fultz,  13  S.  Russell  v.  Gi-egory,  62  Ala.  454 ;  Wax- 
C.  476;  Austin  v.  Bodley,  4  Mon.  elbaum  ■».  Paschal,  64  Ga.  275;  Har- 
(Ky.)  434;  Maude  v.  Rhodes,  4  Dana,  ralsou  v.  Newton,  63  Ga.  163;  Neal  v. 
(Ky.)  144;  Hunt  S.Johnson,  Freeman,  Gordon,  60  Id.  1 12;  Rodega  «.  Perk- 
(Miss.)  282;  Myers  «.  Farrell,  47  ersou,  Id.  516;  Grangers'  Ins.  Co.  ■p. 
Miss.  281;  Bates  y.  Crow,  57  Id.  G7G;  Turner,  61  Id.  561;  Buchanan  v. 
Edwards  ®.  Toomer,  22  Id.  75;  Rid-  Sterling,  63  Ga.  227,  and  very  many- 
ley -y.  Ridley,  24  Id.  G48 ;  Calhoun  «.  other  cases.  There  are  some  to  the 
Ware,  34  Id.  14G ;  Sauford  i'.  Boring,  contrary — Paine  v.  MooreJand,  15 
12  Cal.  539;    AVilkie  v.  Colin,  54  Cal.  Ohio,  435,  and  its  following 


324  JURISDICTION. 

inquire  into  the  right  to  seize,  wlietlier  the  vlel)tor  be  in  conrt 
or  not.  That  riglit  comes  from  the  statute  or  not  at  all,  in  an 
attachment  case.  If  it  is  authorized  by  the  law-maker  only 
when  ordinary  process  is  inadequate,  and  when  certain  conditions 
or  states  of  facts  are  shown  l)y  the  oath  of  the  creditor  to  be 
in  existence,  it  is  impossible  that  a  court  can  have  power  to 
issue  the  writ  to  seize  under  any  other  circumstances.  If  the 
writ  is  issued  without  authorization,  there  is  usurpation  of 
authority.  If  it  is  executed,  the  execution  cannot  possibly 
validate  the  illegal  issue  by  giving,  to  the  usurper,  jurisdiction 
of  such  retroactive  cliaracter  as  to  cure  all  that  went  before  it 
and  contributed  to  the  wrongful  result. 

Whatever  the  statute  makes  essential  to  the  movement  of  the 
court  is  necessarily  jurisdictional.  No  court  could  entertain  an 
attachment  suit  were  all  attachment  laws  re})ea]ed.  No  court 
could  entertain  one  merely  because  of  its  general  jurisdiction. 
Whatever  conditions  precedent  the  legislature  imposes  are 
indispensable  to  the  lodgment  of  the  authority  to  proceed  in  an 
attachment  case. 

It  was  assumed  that  jurisdiction  had  been  already  vested,  in 
Yoorhies  v.  Bank  of  the  United  States •,*  for  there  Mr.  Justice 
Baldwin  cited  several  cases  which  were  not  upon  attachments 
l>nt  which  turned  upon  principles  of  the  common  law,  (Blaine 
V.  The  Charles  Carter,  4  Cr.  328;  Wheaton  v.  Sexton,  4  Wheat. 
506;  Talmie  v.  Thompson,  2  Pet.  157;  Elliott  v.  Piersal,  1  Pet. 
340;  Taylor  v.  Thompson,  5  Pet.  370;  United  States  v.  Arre- 
dondo,  6  Pet.  729,)  to  prove  that  "when  a  court  has  jurisdic 
tion,  it  has  a  right  to  decide  every  question  that  arises  in  the 
cause;  and  whether  the  decision  be  correct  or  not,  its  judgment 
until  reversed  is  regarded  as  binding  in  every  court."  This  is 
incontrovertible.  With  jurisdiction  conceded,  errors  in  its 
exercise  are  cured  by  judgment,  whether  the  suit  be  one  of  attach- 
ment or  one  at  common  law.  So  in  Grignon  v.  Astor,^  which 
was  a  case  not  involving  an  attachment  but  a  probate  court 
judgment,  the  same  justice  assumed  that  jurisdiction  had  Ik^.. 
vested,  and  therefore  he  held    that  the    giving  of  publication 

»  10  Pet.  449.  «  2  How.  319. 


STATUTORY    RKQUISITES    JURISDICTIONAL. 


325 


notice  was  an  act  belonging  to  tlie  exercise  of  jurisdiction,  and 
jiiight  be  presumed  after  the  decree.  So  in  Cooper  v.  Reynolds,  ^ 
it  was  assumed  that  jurisdiction  had  been  already  vested,  and 
that  notice  might  be  presumed  after  the  decree. 

Wherever  the  statute  of  a  State  renders  publication  a  juris- 
dictional requisite,  a  judgment  rendered  without  compliance 
with  it  in  this  respect  is  absolutely  void,  not  only  as  to  the 
defendant  but  as  to  a  purchaser  under  such  judgment  and  all 
other  persons.  Such  judgment,  being  a  nullity  at  the  time  of 
its  rendition,  cannot  possiblj"  be  validated   by  a  sale  under  it. 2 

Where  attachment  is  levied  on  land  of  a  non-resident  and 
summons  is  not  made  on  him,  the  court  possesses  no  power  to 
render  judgment  against  him  and  order  a  sale  of  his  property 
to  satisfy  it,  unless  publication  has  been  made  as  required  by 
law. 3  Whether  the  property  be  real  or  personal,  the  rule  is 
the  same. 

Federal  courts  are  bound  to  observe  the  statutes  of  the 
State,  and  they  usually  look  to  the  construction  by  the  high- 
est court  of  tlie  State,  and  follow  it;  but  it  is  held  that  they 
are  not  bound  to  do  so — the  act  ot'  Congress  not  requiring 
it.*     As  a  general  rule,  the  Supreme  Court  of  the  United  States, 


» 10  Wall.  308. 

2  Anderson  v.  Coburn,  27  Wis.  558. 
Sec.  40  of  the  Code  of  Procedure, 
under  which  this  decision  was  ren- 
dered, required  that  "in  all  cases 
where  publication  is  made,  the  com- 
plaint shaJl  be  first  filed,  and  the 
summons  as  published  shall  state  the 
time  and  place  of  such  filing-,"  and 
that  the  publication  shall  be  made 
"not  less  than  once  a  week  for  six 
weeks."  The  court  said:  "These 
things  were  made  indispensable  in 
order  to  give  the  court  jurisdiction 
where  service  was  made  by  publica- 
tion. It  is  an  elementary  principle, 
that  where  jurisdiction  is  acquired 
by  publication,  the  provisions  of  the 
statute  regulating  the  mode  of  ser- 
vice must  be  strictly  complied  with. 


*  *  *  We  therefore  think  the 
judgment  was  void  at  the  time  of  its 
rendition,  on  account  of  the  omission 
to  file  the  complaint  before  or  when 
the  publication  of  the  summons  com- 
menced, as  required  by  law.  *  *  * 
There  was  no  valid  attachment  be- 
cause there  was  no  proper  publica- 
tion of  the  summons  upon  which  the 
validity  of  the  attachment  depended." 

2  Wescott  V.  Archer,  12   Neb.  345. 

*  Lehman  v.  Berdin,  5  Dillon,  340; 
Erstein  v.  Rothschild,  22  Fed. 
Rep.  61;  U.  S.  Rev.  Stat.  §  915;  At- 
lantic &  Pac.  R.  R.  Co.  V.  Hopkins,  94 
U.  S.  11;  Carroll  v.  Smith,  111  U.  S. 
556,  56:^.;  Burg-ess  v.  Seligman.  107  U. 
S.  20,  33;  County  of  Cass  r.  Johnston, 
95  U.  S.  360;  St.  Joseph  Township  v. 
Rooers,  16  Wall.  644;  State  v.  Sutter- 
field,  54  Mo.  391. 


826 


JUKISDICTION. 


deciding  attacliineiit  suits  brought  up  from  any  State,  looks  to 
its  statutes  and  to  the  construction  there  made  by  its  highest 
tribunal,  for  the  governing  law,  since  that  is  wholly  statutory. 
"Whether  the  question  involved  be  the  effect  of  publication  upon 
jurisdiction,  or  any  otlier,  tlie  national  tribunal  will  look  to  the 
statutes  and  construction  prevailing  in  the  State  whence  the 
case  has  coine.i  Sometimes  a  case,  in  that  court,  turns  wholly 
upon  a  proper  understanding  of  the  statutory  law  applicable 
to  the  attachment.  If  a  mistake  be  made  with  respect  to  that, 
the  decision  would  be  shorn  of  its  influence  as  authority,  to 
prove  that  the  non-observance  of  statutory  recpiireiiients,  by  a 
State  court,  is  only  voidable  error.'^ 

In  the  U.  S.  Supreme  Court  case,  last  cited,  notice  of  publica- 
tion as  required  by  statute  in  the  absence  of  the  service  of  sum- 
mons and  of  the  defendant's  appearance,  was  deemed  non-essen- 


lU.  S.  Rev.  Stat.  Sec.  731.  "The 
laws  of  the  several  States,  except 
where  the  constitution,  treaties  or 
statutes  of  the  United  States  other- 
wise require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials 
at  common  law,  in  courts  of  the 
United  States,  in  cases  where  they 
apply."  Brown  v.  Van  Braam,  3  Dall. 
344;  Robinson  «.  Campbell,  3  Wh. 
212;  Cohens  v.  Virginia,  6  Wli.  2G4; 
Wayman  ■«.  Southard,  10  "Wh.  1 ; 
Green  v.  Neal's  Lessee,  C  Pet.  291 ; 
Ross  «.  Duval,  13  Pet.  45 ;  Swift  ». 
Tyson,  16  Pet.  1 ;  ^  Lane  «.  Vick,  8 
How.  464;  Luther  v.  Borden,  7  How. 
1 ;  Williamson  v.  Berry,  8  How.  495; 
Van  Renselaer  ».  Kearney,  11  How. 
297;  U.  S.  v.  Reid,  12  How.  361; 
Neves  v.  Scott,  13  How.  208;  Carroll 
V.  Carroll's  Lessee,  16  How.  275; 
Morgan  v.  Curtenius,  20  How.  1 ; 
Fenn  v.  Holme,  21  How.  481 ;  Jeter  v. 
Hewitt,  22  How.  352;  Suydam  v. 
Williamson,  24  How.  328;  Slieirburn 
«.  Cordova,  Id.  423;  Haussnecht  v. 
Claypool,  1  Bl.  003;  Chicago  v.  Bob- 
bins, 2  Bl.  418;    Leffingwell   «.  War- 


ren,  Id.  599;  Bridge  Proprietors  v. 
Hoboken  Com.  1  Wall.  145;  Gelpckrt 
t).  Dubuque,  Id.  175;  Christy  v. 
Pridgeon,  4  Wall.  203;  Mitchell  u. 
Burlington,  Id.  274;  Ewing  v.  City  of 
St.  Louis,  5  Wall.  419 ;  Nichols  v. 
Levy,  Id.  433 ;  Delmas  «.  Ins.  Co.  14 
Wall.  667 ;  Boyce  v.  Tabb,  18  Wall. 
546. 

^  In  the  case  of  Cooper  «>.  Reynolds, 
10  Wall.  308,  there  seems  to  liave 
been  a  question  with  reg'ard  to  the 
effect  of  publication  upon  juris- 
diction according  to  the  statute  of 
Tennessee,  whence  the  case  had  been 
brought.  The  majority  of  the  judges 
thought  that  a  purchaser  at  an  attach- 
ment sale  could  successfully  defend 
against  a  collateral  attack,  though  no 
publication  or  no  sufficient  publica- 
tion was  shown  by  the  record  of  the 
attachment  suit.  It  was  shown  that 
the  Tennessee  Code  required  news- 
paper publication  containing  the 
names  of  the  parties,  style  of  the 
court,  the  cause  of  action,  the  time 
and  place  of  the  return,  etc. ;  and  § 
3524  of  that  code,  (1857-8)  was  as  fpl- 


STATUTORY    EEQUISITES    JURISDICTIONAL.  327 

tial  to  the  jurisdiction  because  the  case  was  an  attachment  suit 
in  rem.  It  is  ditiicult  to  discover  liow  that  fact  could  autliorize 
non-conformity  to  the  statutes,  since  it  is  certainly  in  the  power 
of  every  State  to  regulate  its  own  process,  and  to  prescribe  the 
essentials  of  a  proceeding  against  property  as  well  as  those  of  a 
procee<.ling  against  a  person.  Had  there  been  no  publication 
prescribed,  to  take  the  phice  of  a  personal  summons,  in  legal 
etiect,  as  to  property;  had  the  Code  of  Tennessee  been  silent 
on  the  subject,  there  would  yet  have  been  necessity  for  notice  to 
any  ]!erson  who  was  to  be  bound  by  the  decree;  to  all  persons, 
if  all  were  to  be  bound.  A  proceeding  in  rem.,  Avhether  one 
of  general  notice,  to  conclude  all  the  world,  or  of  limited  notice, 
to  conchule  the  one  or  more  persons  to  whom  it  is  addressed,) 
is  of  no  avail  when  there  is  no  notification  at  all,  except  in  the 
limited  instances  in  which  notice  is  presumed.  The  necessity 
of  notice,  in  all  proceedings  in  rem,,  is  as  well  founded  upon 
principle  as  is  that  necessity  when  the  cause  is  in  personam. 
In  its  strictures  upon  that  case,  the  court  of  Tennessee 
(see  the  preceding  note,)  met  the  argument  by  denying 
that  attachment  proceedings  are  in  rein  in  that  State; 
asserting  that  they  are  in  pei'sonam  though  the  defendant  be 
not  served  with  summons  and  should  not  appear;   that  attach- 

lows;,   "The   attachment  and  publi-  of   Tennessee    never  had    acquired 

cation  are  in  lieu  ot  personal  service  jurisdiction  of  the   attachment  suit, 

vpon  the  defendant,  and  the  plaintitF  This    dissenting    opinion    has   been 

may   proceed  upon  the  return  of  the  since     strongly     apjiroved    by    the 

attachment  duly  levied,  as  if  the  suit  Supreme  Court  of  Tennessee  in  the 

had  been  commenced  by  summons."  case  of   Walker  v.   Cottrell,  6   Bax. 

The    Supreme   Court  said,  "It  is  of  257.     It  there  said:  "  We  may  as  well 

no  avail  to  show  that  there  are  errors  dispense   with  the  levy  as  with  the 

in  the  record,  unless  they  be  such  as  publication,"     referring    to   §    3524 

to  prove  tliat  tlie  court  had  no  juris-  avove  quoted   from  the  Tenn.  Code, 

diction  of  the  case."     Kel'erence  was  And    then,    on   general    principles: 

then  made  to  several  Tennessee  cases,  "It  is  contrary  to   the  principle  of 

(as    well    as  to    U.    S.   cases,)     and  justice  to  take,   by  judicial   action,, 

publication  was    held  not    jurisdic-  the  property  of  a  party  and  give   it 

tional  in  such  sense  thai  its  omission  to  another,  without  notice  of  a  pend- 

would  make  the  judgment  absolutely  ing  suit  against  him."     *     *     *     "If 

void.    There  was  a  dissenting  opin-  the  defendant  has   no  notice   or   its 

iuu  which  lield  that  the    State   court  equivalent,  the  judgment  is  void." 


328  JURISDICTION. 

ment  there  is  ancillary  and  is  not  leatliiii>;  process.  An  attach- 
ment suit  at  law  is  necessarily  in  lyersonaiii  when  it  originates 
ill  a  federal  court,  because  the  jurisdiction  depends  upon  the 
residence  of  the  parties  as  in  any  case  at  law  therein,  when  not 
included  in  statutory  exceptions;  and  attachment  is  always  an- 
cillary.^ From  this  limitation  it  has  been  inferred  that  the  non- 
observance  of  the  requirements  of  State  statutes  is  mere  error  of 
procedure,  in  those  courts,  not  affecting  jurisdiction  in  the  an- 
cillary proceeding.^  There  must,  however,  be  "  similar  affidavits 
and  proofs  and  similar  security,  as  required  by  the  State  law."* 
The  State  practice  must  be  followed  "  as  near  as  maybe."* 
It  is  not  a  rule  of  procedure  unless  adopted  by  the  federal  courts. 
i>ut  State  statutes  are  rules  of  decision  governing  rights  and 
titles,  litigated  in  those  courts. 

In  a  collateral  attack  upon  an  attachment  judgment,  the 
difference  between  insufficient  notice  by  publication  and  an 
entire  absence  of  notice,  should  be  remarked,  when  they  are 
presented  as  grounds  for  treating  the  attachment  judgment  as  a 
nullity.^  If  the  plaintiff  in  such  collateral  action  relies  alone 
upon  the  record  to  show  that  the  publication  in  the  attachment 
proceeding  fell  short  of  the  statute  requirement,  he  will  have 
to  encounter  the  presumption  which  favors  the  record;^  but 
should  he  have  the  silence  of  the  record  with   regard  to  notice, 

1  U.  S.  Rev.  Stat.  §§  738-742,  915;  Nudd  v.  Buitows,  91  U.  S.  426,  441. 

Ex  parte  Railroad  Co.  108  U.  S.  794;  ^  Gregg  v.  Thompson,  17  Iowa,  107: 

And  rson  v.  Shaffer,  10  Fed.  Rep.  266;  Here  the  court  presumed    the  notice 

Day  f.  Newark  India  Rubber  Co.  1  sufficient,  in  the  absence  of  evidence 

Bliitchf.    628;    Allen   v.  Blunt,  1    Id.  disproving  what  appeared  of  record. 

480;  Richmond  v.  Dreyfous,  1  Sumn.  It    would    seem   that  the   judgment 

131;    P.quet    v.  Swan,  5   Mason,  35;  would  have  been  held  void,  Lad  there 

Saddler  v.  Hudson,   2  Curt.  C.  C.  6;  been  no  notice  whatever. 

Toland  r.  Sprague,  12  Pet.  300;  Levy  *'Boker  v.  Chapline,  12  Iowa,  204, 

V.  Fitzpatrick,  15  Id.  171;  Chittenden's  where   the  return  was,  "'Served  the 

Case,  2  Woods.  437;    Clarke  v.  N.  J.  within  notice  by  reading,''  etc.,  with- 

Steam  Nav.  Co.  1  Story,  531.  out  stating  to  whom:     held  that  it 

^Erstein  i).  Rothschild,  22  Fed.  Rep.  must   be    presumed    that    the    officer 

61.  served  it  personally  on   defendant  as 

^  U.  S.  Rev.  Stat.  §  915.  required    by    the  writ.     Crowley    v. 

Md.  §914;  Indianapolis  &  St.  Louis  Wallace,  12  Mo.  147:  presumption 
R.  R.  Co.  V.  Horst,  93  U.  S.  291,  300; 


THE  court's  authority  special. 


329 


to  rely  upon,  no  presumption   that  notice  was  given  could  Le 
invoked  against  him. 

Sec.  5.    The  Court's  Autiiority  Special. 

The  general  rule  is  that  judgments  of  an  inferior  court  in 
which  it  has  exceeded  its  jurisdiction,  are  void;  those  of  supe- 
rior or  general  jurisdiction,  only  voidable;^  but  any  court  must 
luive  power  to  hear,  and  to  determine  the  subject  matter,  before 
proceeding  to  exercise  it  at  all.^ 

If  the  jurisdiction  of  a  court  of  inferior  or  limited  jurisdic- 
tion has  once  attached,  its  subsequent  proceedings  are  presumed 
as  regular  as  those  of  a  court  of  general  powers.  ^  On  the 
other  hand,  when  courts  of  superior  or  general  jurisdiction  are 
exercising  special  statutory  powers,  their  records  are  subject  to 
the  same  rules  as  are  those  of  inferior  or  limited  jurisdiction. ^ 

There  is  no  presumption  of  the  existence  of  jurisdictional 
facts  arising  from  the  exercise  of  jurisdiction  by  an  inferior 
court;5   nor  is  there  any,  arising  from  such  exercise  by  a  supe- 


of  the  proper  lo^Ynsllip  when  the 
officer  had  omitted  to  name  it  in  his 
return  of  service.  Bromley  v.  Smith, 
2  Hill,  517:  "Personally  served" 
presumed  to  mean  all  that  the  stat- 
ute required  as  to  time  and  manner 
of  service.  These  presumptions  were 
in  collateral  attacks  made  on  judg- 
ments sought  to  be  set  aside  for  in- 
sullicient  service;  and  in  each  case 
tliere  was  evidence  of  notice,  appear- 
ing by  record.  None  of  these  cases 
hold  tliat  there  is  presumption  of 
notice  when  the  record  malies  no 
showing  whatever  of  such  jurisdic- 
tional fact. 

'  Kempe's  Lessee  v.  Kennedy,  5 
Cranch,  173;  Thompson  v.  Tolmie,  3 
Pet.  157. 

2  Beauregard  v.  New  Orleans,  18 
How.  "-02;  Shriver's  Lessee -y.  Lynn, 
2  How.  43,  60 ;  United  States  v.  Arre- 


dondo,  6  Pet.  709 :  Voorhies  v.  Bank 
of  the  United  States,  10  Pet.  474; 
State  of  Bhode  Island  v.  State  of 
Mass.,  13  Pet. '718;  Florentine  v.  Bar- 
ton, 2  Wal.  216 ;  Comstock  d.  Craw- 
ford, 3  Wal.  404;  Callen  -y.  Ellison, 
et  cil.  13  Ohio  State,  452;  Sheldon  v. 
Newton,  3  Ohio  State,  494;  Shroyer 
v.  Richmond,  16  Ohio  State,  455; 
Wilder  v.  City  of  Chicago,  20  111. 
182;  Dequindre  ».  Williams,  31  Ind. 
456;  Smiley  ■«.  Samson,  1  Neb.  56; 
Mulford  «.  Stalzenback,   46  111.   307. 

*  Smith  V.  Engle,  44  Iowa,  265. 

*  Kansas  City,  St.  Ja  &  C.  B.  R.  R. 
Co.  V.  Campbell,  62  Mo.  5^5. 

s  Petters  v.  McClaunahan,  53  Ala. 
55;  Cunningham  v.  Pac.  R.  R.  Co.  61 
Mo.  33 ;  State  v.  Gacheuheimer,  30 
Ind.  63 ;  Ohio,  etc.  R.  R.  Co.  «.  Shultz, 
81  Ind.  150;  Slate  ».  Ely,  43  Ala. 
568. 


330 


JUKISDICTION. 


rior  court,  when  acting  pursuant  to  special  authorization.  A 
court,  thoiii;-]i  one  of  superior  jurisdiction,  is  subject  to  tlie 
rule  governing  courts  of  inferior  jurisdiction,  tliat  nothing  shall 
be  intended  to  be  within  its  powers  but  what  is  expressly  alleged 
of  record,  when  it  is  in  the  exercise  of  special  statutory  author- 
ity.  And  the  validity  of  its  judgment  may  be  collaterally 
questioned  if  the  record  does  not  show  all  the  required  juris- 
dictional, facts.  ^ 

The  distinction  between  courts  with  reference  to  the  pre- 
.  sumption  of  jurisdictional  facts  after  decree,  is  not  that  between 
inferior  and  superior,  but  between  courts  acting  pursuant  to 
statutory  authorization   and  those  exercising  general  powers. 

Courts  of  special  statutory  jurisdiction,  must  not  only  act 
within  its  scope,  but  it  must"  appear  on  the  face  of  their  pro- 
ceedings that  they  so  acted,  or  their  proceedings  are  coram  non 
judice  and  void.^ 


1  Peacock  v.  Bell,  1  SauncL  69; 
Thatcher  B.Powell,  6  Wheat.  119; 
Williamson  v.  Ball,  8  How.  (U.  S.) 
566;  Williamson  v.  Berry,  Id.  49.>; 
Denning «.  Corwiu,  11  Wend.  648; 
Jackson  v.  Esty,  7  Id.  148 ;  Bloom  v. 
Burdick,  1  Hill,  130;  Rogers  v.  Dill, 
6  Id.  415;  Dakin  «.  Hudson,  6  Cow. 
221;  Latham  v.  Edgerton,  9  Id.  227 ; 
Borden  v.  Fitch,  15  Johns.  121 ;  Mills 
v.  Martin,  19  Id.  7;  Bigelow  «. 
Stearns,  Id.  39 ;  Goudy  v.  Hall,  30  111. 
109;  White  v.  Jones,  38  111.  160; 
Miller  7;.  Handy,  40  111.  448;  Camp- 
bell y.  McCahan,  41  111.  45;  Whorton 
0.  Morayne,  62  Ala.  201 ;  Dynes  v. 
Hoover,  20  How.  65,  80 ;  Shriver  v. 
Lynn,  2  How.  43;  Elliott  v.  Piersol, 
1  Pet.  328;  Thompson  v.  Tolmie,  2 
Pet.  157;  Wilkinson  v.  Lelaud,  2 
Pet.  627;  Morris  v.  Hogle,37  111.  150; 
Congar  «.  Galiua,  etc.,  17  Wis.  477; 
Miller  t).  Handy,  40  111.  448;  Clark 
«.  Thompson,  47  111.  27  ;  Haywood  v. 
Collins,  60  111.  828;  Osgood  v.  Black- 
more,  59  111.  201 ;  Morse  v.  Goold,  11 
N.  Y.    281 ;  Jackson  v.  Babcock,   16 


Id.  246;  Gibson  v.  Roll,  30  111.  172; 
Johnson  ».  Johnson,  Id.  215;  Goudy 
■».  Hall,  Id.  109 ;  Mason  x>.  Messenger, 
17  Iowa,  268;  Grignon's  Lessee  v 
Astor,  2  How.  388. 

2  Ex  parte  R.  R.  Co.  103  U.  S.  794; 
Walker  «.  Turner,  9  Wheat.  541; 
Kemp  i).  Kennedy,  5  Cr.  172;  Turner 
V.  Bank  of  America,  4  Dall.  11 ;  Ran- 
soms. Williams,  2  Wall.  313;  Wil- 
liamson «.  Berry,  8  How.  495;  Bos- 
well  «.  Otis,  9  Id.  336;  Batons.  Bad- 
ger, 33  N.  H.  228;  Gray  «.  McNeal, 
12  Ga.  424;  Williams  v.  Blunt,  2 
Mass.  213;  Hunt-y.  Hapgood,  4  Mass. 
1^2,  Albee  v.  Ward,  8  Mass.  86; 
Smith  «.  Rice,  11  Mass.  513;  Hen- 
drick  V.  Cleveland,  2  Vt.  329 ;  Wal- 
bridge  ».  Hall,  3  Vt.  114;  Clapp  v. 
BeaKlsley,  1  Aik.  (Vt.)  168;  Hall  v. 
Howd,  10  Ct.  514;  Webster  ».  Pars- 
ons, Kirby,  (Ct.)  27;  Powers  ■».  Peo- 
ple, 4  Johns.  292;  Latham  v.  Eger- 
ton,  9  Cow.  227;  Bergen  Tui'npike 
Co.  V.  State,  25  N.  J.  L.  554;  City  of 
Chicago  V.  Rock  Island  R.  R.  Co.  20 
111.  286;  Martin  «.  Dryden,  0  Id.  187; 


THE    COURTS   AUTHORITY    SPECIAL. 


831 


Attacliinent  Leiii"^  a  special,  exti'aordinary,  statute  remedy, 
comes  under  the  I'ule  requiring  jurisdictional  facts  to  appear  uf 
record,  including  ])ublication  notice,  when  that  is  a  jurisdic- 
tional tact.i 

When  a  court  of  general  jurisdiction  has  exercised  general 
authority  to  hear  and  determine,  it  may  be  presumed  to  have 
had  jurisdiction  when  its  authority  is  collaterally  questioned.* 
It  has  been  held  that,  after  such  court  has  acquired  jurisdiction 
of  the  parties  and  of  the  subject-matter,  should  tliere  be  judg- 
ment rendered  without  a  trial,  the  only  remedy  would  be  by 
appeal; 3  that,  even  under  such  circumstances,  the  erroneous 
decree  could  not  be  successfully  assailed  in  a  collateral  action. 


Martin  v.  McKiuney,  Sueed,  (Ky.) 
380;  Cannon  v.  Wood,  2  Sneed, 
(Tenn.)177;  Williams  v.  Stewart,  3 
Wis.  773;  Hamilton  v.  Buriim,  3 
Yerg.  (Tenn.)  355;  Chandler  v.  Nash, 
5  Mich.  409;  Bryan  v.  Smith,  10 
Mich.  229;  Stockett  v.  Nicholson,  1 
Miss.  75;  State*.  Metzger,  20  Miss. 
65;  Sullivan  «.  Blackwell,  28  Miss. 
737 ;  Edwards  v.  Toomer,  23  Id.  75 ; 
Wickes  V.  Caulk,  5  Har.  &  J.  (Md.) 
36;  Proctor  v.  State,  5  Harr.  (Del. 
387;  Potomac  Steamboat  Co.  v, 
Clyde,  51  Md.  174;  McKenzie  v. 
Ramsay,  1  Bailey,  (S.  C.)  459 ;  Har- 
vey 1).  Huggins,  2  Id.  267;  Hill  v. 
Pride,  4  Call,  (Va.)  107;  Owen  v. 
Jordan,  27  Ala.  608;  Foster  v.  Glaze- 
ner.  Id.  391 ;  Gray  v.  Reveille,  6  Wis. 
59;  Harris  v.  Hardeman,  14  How. 
343. 

1  Haywood  v.  Collins.  60  111.  328; 
Foyles  v.  Kelso,  1  Blackf.  215; 
O'Brien  v.  Daniel,  2  Id.  291 ;  Leach 
V.  Swann,  8  Id.  68;  Clark  v.  Thomp- 
son, 47  111.  26;  Schnell  v.  City  of 
Chicago,  38  111.383;  Morris  v.  Hogle, 
37  111.  150;  Cariker  v.  Anderson,  27 
111.358;  Rowley  v.  Berrian,  12  Id. 
198;  Vairin  v.  Edmonson,  5  Oilman, 
270;  Lawrence  V.  Ye:itman,  2  Scam. 
15;  Buckley  v.  Lowry,  2  Mich.  418; 


Roelofson  v.  Hatch,  3  Id.  277.  In 
King  V.  Harrington,  14  Mich.  532, 
the  court  said,  (p.  541) :  "  Where 
there  is  no  personal  service,  the  pub- 
lication of  notice  is  necessary  to  en- 
able the  court  to  obtain  jurisdiction; 
and  no  judgment  is  valid  without  it. 
It  has  always  been  required  in 
special  proceedings  against  parties 
not  served  or  appearing,  that  the 
substituted  service  shall  be  strictly 
regular  under  the  statutes.  Thomp- 
son V.  Thomas,  11  Mich.  274.  And 
the  statute  makes  proof  of  publica- 
tion a  pre-requisite  to  the  plaiutiflF's 
declaring  and  proceeding  to  judg- 
ment." The  case  was  a  collateral 
attack  on  an  attachment  judgment. 
In  Millar  v.  Babcock,  29  Mich.  526, 
judgment  in  an  attachment  suit, 
without  the  notice  required  by  stat- 
ute, was  treated,  in  a  collateral  ac- 
tion, as  not  merely  voidable,  but 
void  for  want  of  jurisdiction. 

2  Crane  v.  Kimmer,  77  lud.  215, 
held,  where  judgment  of  partition 
was  collaterally  attacked,  it  was  pre- 
sumed that  process  had  been  duly 
served  on  all  parties. 

3  Clark  V.  Lassen  Co.  Court,  55 
Cal.  199. 


332  JUEISDICTION. 

But  a  court  whicli  lias  jurisdiction  of  the  subject-matter  of  the 
personal  suit  does  not  therefore  have  it  in  the  ancillary  attach- 
ment proceeding;  the  subject-matter  of  the  former  does  not 
include  tlie  res  of  the  latter;  the  defendant  may  be  personally 
in  court,  yet  no  lien  may  be  created  npon  his  attached  property 
for  want  of  compliance  with  statutory  i-equisites. 

The  presumption  is  not  applicable  when  a  court  has  exercised 
special  authority, ^  even  though  it  be  a  tribunal  of  general  jur- 
isdiction. The  record  should  show  that  the  procedure  was  in 
accordance  with  statute  authorization,  and  pul)lication  notice 
should  athrmatively  ap])ear.  It  ought  to  appear  by  the  retui'u 
thereon  and  the  proof  thereof,  duly  entered. 

But  when  an  attachment  case  has  been  tried,  and  the  fact 
found  in  the  judgment  that  "  publicati(jn  was  duly  and  legally 
made  on  the  defendant,"  it  has  been  sometimes  held  that  the 
judgment  could  not  be  collaterally  impeached  as  void  for  want 
of  notice. 2  The  State  statutes  do  not  all  specify  minutely  in 
what  form  the  record  evidence  of  publication  notice  shall  appear; 
and,  wdien  they  are  not  pointed,  the  courts  have  some  latitude 
of  interpretation.  When  a  statute  imperatively  prescribes 
what  shall  be  conclusive  record  evidence  in  an  attachment  suit, 
courts  follow  it  though  the  provision  may  be  novel.  ^ 

When  the  statute  makes  publication,  (in  the  absence  of  serv- 
ice or  appearance,)  a  prerecpiisite  to  further  procedure,  proof  of 
publication  must  appear  of  record  as  a  jurisdictional  fact;  and 
there  is  no  presumption  favoring  the  decree  in  the  absence  of 
record  evidence;  and  the  judgment  may  be  treated  as  void  and 
altogether  disregarded  in  a  collateral  action  against  a  purchaser 

1  Brulm  «.  Jefferson  Bank,  54  Tex.  therein  named  was  a  concealed,  ab- 
152.  scouding  or  non-resident   debtor     * 

2  Gregg ».  Thompson,  17  Iowa,  107;  *  *  and  that  all  the  proceedings 
Kilnease  «.  Blyihe,  6  Hump.  878;  previous  thereto,  [to  such  appoint- 
Cornelius  ».  Davis,  2  Head,  253;  ment,]  were  ref/t/iar,"  the  court  held 
Gunn  «.  Mason,  2  Sneed,  G37.  These  tiiat  irregularities  could  not  be  in- 
Tenn.  cases  superseded  by  Walker  ».  vestigated  collaterally.  No  title  to 
Coltrell,  6  Bax.  257.  property  sold   under  an   attachment 

'  In   New  York,   under   a  statute      judgment  was  in  controversy.     Mat. 
making  the  appointment  of  trustees      ter  fif  Clark,  3  Denio,  1G7,  169. 
"conclusive  evidence  that  the  debtor 


THE  court's  authokity  special.  333 

dawning  title  under  sncli  judgment  for  tlie  attaching  creditor. 
This  is  true  wherever  the  statute  expressly  or  impliedly 
makes  ])ublication  an  indispensable  preliminary  to  further  pro- 
cedure; it  is  jurisdictional;  and  the  omission  of  it  does  not  ren- 
der a  decree  merely  voidable  but  absolutely  void.  In  sucli  case, 
a  purchaser  at  a  sale  of  the  property  under  execution  is  not 
protected  in  his  title.^ 

Collateral  attacks  upon  attachnient  judgments,  by  means  of 
ejectment  suits  against  purchasers  at  attachment  sales,  have 
sriven  occasion  to  the  discussion  of  the\  effect  of  the  want  of 
notice,  and  of  the  failure  of  the  record  to  show  notice,  so  far  as 
such  effects  concern  purchasers.  There  is  a  disposition  to  pro- 
tect the  purchaser.  Doubtless  there  are  many  circumstances 
under  which  he  should  be  fully  protected  from  loss  when  the 
title  lie  has  bought  fails  for  want  of  some  legal  proceeding  in 
the  case  in  which  it  w^as  attached,  for  which  he  is  in  no  wise 
accountable.  Doubtless  he  often  should  be  allowed  to  recover 
the  purchase  money,  and  w'hatever  else  is  necessary  to  make 
him  whole,  though  he  cannot  successfully  defend  his  title. 
There  are  very  many  circumstances  which  would  preclude  his 
being  cut  oft'  from  recovery  under  the  plea  that  he  bought  at 
his  own  risk.  That  subject  is  not  now  under  the  pen.  Can  he 
liold  tlie  property  itself,  if  the  former  owner,  the  attachment- 
debtor,  was  not  present,  nor  summoned,  nor  notified  in  the  pro- 
ceeding under  which  the  property  was  executed? 

It  is  certain  that  if  the  title  of  the  defendant  has  not  been 
divested,  as  to  him,  it  cannot  have  been  vested  in  the  purchaser. 
It  is  also  certain  that  if  the  proceedings  are  an  absolute  nullity 

*  King    V.    Harrington,    14    Mich.  Thompson,  53  Mo.    183;  Warner  v. 

532;  Miller  ?).  Babcock,   29  Id.  526;  Webster,  13  Ohio,   505;  and  the  fol- 

Haywood    v.    Collins,    60    111.    328;  lowing,  not  confined  to  attachments, 

Haywood  v.   McCrory,  33   111.   459;  but  supporting  the   same   principle: 

Clark    V.     Thompson,    47    111.    26;  Huls  ».  Buntin,  47   111.   396;    Camp- 

Schuell  v.    City  of  Chicago,   38  Id.  bell -y.  McCahan,  41  Id.  45;  Miller  c. 

382;     ]\Iorris  -o.  Hogle,  37    Id.    150;  Handy,  40  Id.   448;  Goudy   v.   Hall, 

Jones  t).  Jones,   16   Id.  117;  Clarke.  30  Id.  109;  Strieker  ».  Kelly,  7  Hill, 

Bryan,  16  Md.   171;   Johnson  ^).  Lay-  10;  Foyles  v.    Kelso,  1    Blackf.  215; 

ton,  5  Harr.  (Del.)  252;   Andersons.  O'Brien  ti.  Daniel,  2  Id.   291;  Leuch 

Coburn,    27  Wis.  558;    Freeman  v.  u.  Swan,  8  Id.  68. 


834  JUEISDICTION. 

as  to  the  defendant,  he  is  not  bound  to  sue  out  a  writ  of  error 
to  have  them  declared  such. 

When  suit  has  been  brought  in  one  county,  attachments  in 
another  may  be  sued  out;  but  the  suit  cannot  legally  be  said  to 
be  brought,  unless  there  has  been  service  upon  tlie  defendant, 
or  attachment  of  property  of  his  with  publication  notice. 
Where  a  petition  is  filed  but  no  writ  nor  summons  served,  or  an 
attachment  sued  out  but  no  levy  made,  there  is  no  suit  brought. 
In  a  suit  against  two  makers  of  a  note,  one  living  in  the  county 
where  the  suit  is  brought  and  the  other  in  another  State  but 
having  property  in  that  M'here  the  suit  against  the  first  is 
brought  though  in  a  diflierent  county,  it  may  be  ^^eaclied  by  at- 
tachment and  publication,  issued  in  the  suit  in  which  the  first 
defendant  had  been  served,  where  the  statute  so  authorizes  ;i 
and  where  there  is  no  statute  authorization  of  that  character, 
an  attachment  suit  against  the  non-resident,  brought  by  levy 
and  publication  in  the  county  where  his  property  is  situated, 
ought  not  be  prejudiced  by  the  fact  that  his  co-obligor  on  the 
note  had  been  personally  sued  in  a  difi^erent  county. 

The  court  has  no  jurisdiction  wdien  the  record  does  not  show 
service  or  attachment  or  garnishment  in  the  county.* 

Sec.  6.    Territorial  Limits. 

Courts  have  no  extra  territorial  jurisdiction,  over  either  per- 
sons or  property,  in  attachment  suits. 

Jurisdiction  must  be  over  property,  or  persons,  or  both.  A 
court  cannot  take  jurisdiction  of  a  personal  action  against  a 
non-resident  who  is  not  cited,  but  it  may  proceed  against  prop- 
erty of  his  that  is  within  the  State.  One  who  is  within  the 
terriborial  jurisdiction  of  a  court  may  be  cited  to  appear,  and 
may  be  defaulted  for  non-appearance.  After  citation,  whether 
he  appear  or  not,  a  binding  judgment  may  be  rendered  against 
him.  The  power  of  the  court  over  him  does  not  depend  upon 
his  having  property  within  the  State.  But,  on  the  other  hand, 
if  he  is  non-resident  and  cannot  be  cited,  the  court  can  proceed 

'  Haywood  v.  McCrory,  33  111.  459;      man  v.  Rushmore,  27  111.  509. 
Fullet  v.  Langford,  31  111.  248;   Hin-  '^  Johnson  v.  Johnson,  26  Ind.   441. 


te:^ritokial  limits.  333 

only  against  property  of  his  witliin  tlie  State.  After  giving 
him  notice  of  its  seizure,  tlie  proceeding  may  go  on  against  the 
property  to  its  condemnation.  However  great  tlie  demand,  no 
judgment  can  be  rendered,  of  binding  effect,  beyond  the  value 
of  the  property  proceeded  against  to  judgment;  and  any  excess 
M'ould  be  coram  non  judice.'^ 

There  is  a  presumption  that  the  owner  knows  of  the  seizure 
of  his  property,  M'hen  it  is  takcu  from  him  personally;  and  the 
presumption  has  even  been  extended  to  cases  where  property 
was  tahen  from  his  agent.  More  weight  is  given  to  this  pre- 
sumption in  some  States  than  in  others.  The  owner  is  some- 
times erroneously  said  to  be  brought  into  court  by  his  prop- 
erty. Publication  is,  however,  required  in  addition  to  the  seiz- 
ure of  property,  to  give  the  owner  such  notice  as  will  enable 
the  court  to  proceed  to  the  condemnation  of  the  thing  seized. 
Seizure  of  property  and  publication  do  not  give  the  court  juris- 
diction over  the  owner  as  a  party  to  the  suit;  both  combined 
constitute  no  service  upon  him  but  merely  notice  to  him;  and 
therefore  no  judgment  binding  upon  him  personally,  suscepti- 
ble of  following  him  anywhere,  entitled  to  recognition  as  a 
judgment  in  any  State,  can  be  rendered.  Though  the  condem- 
nation-of  the  property  ought  to  be  respected  everywhere,  (when 
the  proceeding  has  been  in  rem  with  publication  notice,)  the 
judgment  against  a  person,  after  publication,  and  without 
citation,  ought  not  to  be  recognized  as  a  personal  judgment  in 
any  State — not  even  in  that  of  its  rendition. 2      Courts  in  each 

^  Boswell's  Lessee  u.  Otis,  9  How.  ton,   14  Mich.  532,  541;    Clymore  «. 

336;  Picqtiet  «.  Swan,  5  ]\Iason,    35;  Williams,  77  111.  618;  Fitzsimmons'U. 

Thompson  ».  Thoma?,  11   Mich.  274.  Marks,  66  Barb.  333;    Miller  «.  Dun- 

"  Where  there  is  no  personal  service,  gan,  36   N.  J.  L.  31;    Livingston   v. 

the  publication  of  notice  is  necessary  Smith,  5  Pet.  89 ;  Ricketts  v.  Hender- 

to  enable   the  court  to  obtain  juris-  son,   2    Cr.    C.   C.    157;      Lincoln   v. 

diction;  and   no  judgment   is  valid  Tower,    2    INIcLean,    473;     Boyd  .v. 

without  it.     It  has  always  been  re-  Urguhart,  1    Sprague,  423;  Warren 

quired,  in  special  proceed  ng;  against  Manuf.  Co.  «.  Etna  Ins.  Co.  2  Paine, 

parties  not  served  or  appearing,  that  502. 

the     substituted    service     shall     be  ^  Smith   «.  Cutchen,   38    Mo.   415; 

strictly  regular  under  the   statutes.  Darrance  t).  Preston,  18  Iowa,  396; 

The  publication  stands  in  lieu  of  per-  Hakes  «.  Shupe,  27  Id.  465;    Mitch- 

sonal  summons."     King  d.  Harring-  ell's  Admr.  v.  Gray,  18  Ind.  123. 


336  JURISDICTION. 

State  must  give  "full  f.iitli  and  credit"  to  the  judicial  proceed- 
ings of  every  otlier  State,  provided  the  proceedings  are  by 
courts  Iiaving  jurisdiction — and  there  may  always  be  inquiry 
with  respect  to  jurisdiction. i 

Courts  may  go  so  far  in  the  inquiry  concerning  the  jurisdic- 
tion of  other  courts  beyond  the  State  limits,  when  asked  to  rec- 
ognize and  enforce  judgments  there  rendered,  as  to  allow  evi- 
dence contradictory  of  jurisdictional  facts  stated  in  the  record. ^ 
Even  when  the  proceedings  under  inspection  are  in  the  form  of 
a  personal  action,  they  can  only  be  sustained  in  the  absence  of 
personal  citation  or  appearance,  where  they  are  really  in  rem 
and  there  have  been  seizure  and  publication,  and  the  court 
rendering  judgment  has  had  jurisdiction  over  the  thing  by 
having  possession  of  it.  And  the  record  must  show  tlie  juris- 
dictional facts  essential  to  the  sustaining  of  the  decree ;3  for, 
though  the  record  is  not  absolutely  conclusive  beyond  suscepti- 
bility of  being  contradicted,  in  its  ath'rmation  of  such  facts, 
there  can  be  no  proof  to  sustain  jurisdiction  when  those  facts 
do  not  affirmatively  appear  of  record.  In  other  words,  should 
the  record  show  publication,  that  fact  may  be  investigated  in  a 
collateral  proceeding  and  may  possibly  be  disproved;  but,  should 
the  record  of  an  attachment  suit  fail  to  show  service,  publica- 
tion, or  appearance,  or  fail  to  show  that  affidavit  was  made  and 
all  statutory  requisites  observed,  and  the  judgment  should  be 
collaterally  assailed,  no  evidence  would  be  admissible  to  prove 
publication  or  supply  any  of  these  fatal  omissions. 

If  a  judgment  shows  the  necessary  jurisdictional  facts,  and  it 
is  collaterally  assailed  in  a  State  other  than  that  in  which  the 


1  D'Arcy  v.  Ketclium,  11  How.  165;  Lynn,  2  How.  59;  Hickey's  Lessee -o. 

AVebster  ■«.  Reid,  Id.  437 ;  McElmoyle  Stewart,  3  How.  762;    Williamson©. 

V.  Cohen,  13  Pet.  312;  The  Lafayette  Berry,  8  How.  540. 

Ins.   Co.  v.   French,   18    How.   404;  ^  xhompson  ?j.  Whitman,  18  Wall. 

Rose  V.  Himely,  4  Cr.  269;    Harris  v.  457. 

Hardeman,  14  How.  334;    Christmas  ^  Harris  v.  Hardeman,  14  How.  834; 

V.  Russell,  5   Wall.    290;    Elliott  ij.  Borden -u.  Fitch,  15  Johns.  141;  Star- 

Piersol,  1  Pet.  328;  U.  S.  ».  Arredon-  buck    v.    Murray,    5     Wend.     156; 

do,  6  Pet.  691;    Voorhies  ij.  Bank  of  Christmas  v.    Russell,  5  Wall.   290; 

U.  S.  10  Pet.  475 ;  Wilcox  v.  Jackson,  Elliott  v.  Piersol,  1  Pet.  328,  340. 
13    Pet.   511;    Shryver's  Lessee    v. 


TEKKITORIAL    LIMITS.  337 

(ud^-ment  was  rendered,  the  assailant  may  introduce  evidence 
to  disprove  the  record  and  contradict  the  jurisdictional  facts 
stated  therein  as  having  been  passed  upon  judicially.  In  the 
language  of  Mr.  Justice  Bradley:  "  If  it  is  once  conceded  that 
the  validity  of  a  judgment  may  be  attacked  collaterally  by 
evidence  showing  that  the  court  had  no  jurisdiction,  it  is  not 
perceived  how  any  allegation  contained  in  the  record  itself,  how- 
ever strongly  made, can  affect  the  right  so  as  to  question  it.  The 
very  object  of  the  evidence  is  to  invalidate  the  paper  as  a  record. 
If  that  can  be  successfully  done,  no  statements  contained  therein 
can  have  any  force.  If  any  such  statement  could  be  used  to 
prevent  inquiry,  a  slight  form  of  words  might  always  be 
adopted  so  as  ejffectually  to  nullify  the  right  of  such  inquiry, 
liecitals  of  this  kind  must  be  regarded  like  asseverations  of 
good  faith  in  a  deed,  which  will  avail  nothing  if  the  instrument 
is  shown  to  be  fraudulent.  The  records  of  the  domestic  tribun- 
als of  England^ and  some  of  the  States,  it  is  true,  are  held  to 
import  absolute  verity  as  well  in  relation  to  jurisdictional  facts 
as  to  all  other  facts,  in  all  collateral  proceedings.  Public  policy 
and  the  dignity  of  the  courts  are  supposed  to  require  that  uq 
averment  shall  be  admitted  to  contradict  the  record.  But,  as 
we  have  seen,  that  rule  has  no  extra  territorial  force.'' i 

If  the  assailant  offer  evidence  tending  to  disprove  the  juris- 
dictional facts  of  the  record  offered  in  a  State  other  than  that 
in  which  the  judgment  was  rendered,  it  is  obvious  that  the  other 
party  may  combat  such  evidence  iind  sustain  the  facts  which 
the  record  recites. 

Jurisdiction  over  persons  and  property,  in  any  State,  is  con- 
fined to  the  persons  and  property  within  the  teri-itorial  bounds 
of  the  State.  No  court  within  it  can  exercise  jurisdiction 
beyond  it.  To  exercise  it  over  persons  or  property  in  another 
State  would  be  an  unwarrantable  assumption  and  arrogation  of 
unlawful  authority,  entitled  to  no  respect  on  the  princi])le  of 
comity,  but  meriting  rebuke  and  resistance  as  wanton  abnse 
of  power.  3      A  judgment  rendered  in  any  State  against  a  per- 

'  Thompson  v.  Whitman,  18  Wall.  '  D'Arcy  z.  Ketchum,  11  How.  (U 

4G8.  S.)  165. 

22 


338  JURISDICTION. 

son  or  property  over  which  the  court  has  no  jurisdiction,  is  not 
entitled  to  "full  faith  and  credit"  in  other  States,  but  its  valid- 
ity may  be  questioned  on  jurisdictioiuil  o;rounds,  audits  enforce- 
ment resisted,  1  for,  not  being  by  due  process  of  law,  it  is 
entitled  to  no  regard,  even  in  the  State  where  it  is  rendered; 
and  it  may  be  impeached  collaterally  anywhere. ^ 

No  State  in  the  Union  has  authority  beyond  its  bounds,  in 
any  of  its  departments;  and  therefore  it  can  confer  none  upon 
its  judiciary.  As  the  power  of  the  United  States  Government 
is  limited  to  its  own  territory,  (except  on  the  high  seas,  in  com- 
mon with  the  government  of  other  nations,  and  such  rights  and 
powers  as  it  has  under  international  law,)  so  the  power  of  any 
single  State  is  without  ex-territorial  authority.  As  well  might 
the  United  States  attempt  to  authorize  its  tribunals  to  adjudi- 
cate upon  persons  or  property  abroad,  as  for  any  State  to 
attempt  it  upon  persons  or  property  in  another  State. 

Since  jurisdictionless  judgments  rendered  against  persons  or 
property  beyond  State  bounds,  are  corain  non  judice  within  the 
State  where  they  are  rendered  as  well  as  beyond,  it  follows 
that  federal  courts,  sitting  therein,  are  not  obliged,  indeed,  are 
not  at  liberty,  to  give  effect  to  them.  Federal  courts  are  not 
foreign  tribunals  in  relation  to  the  courts  of  the  State  in  which 
they  may  be  sitting,  but  they  have  a  separate  jurisdiction;  they 
observe  the  laws  of  the  State  in  which  they  sit,  though  they 
derive  their  authority  from  a  source  exercising  different  and 
special  powers  of  sovereignty.  But  there  is  nothing  in  the 
exceptional   way    in  which  they  are  constituted,  nor  in  their 

1  Constitution, Fourth  Aniendnient.  545;     Hunt    v.    .Johnson,    Freeman, 

2  Wilcox  ?>.  Jackson,  13  Pet.  511;  (Miss.)  282;  Kibbe  «.  Kibbfe,  Kirby, 
Shriver's  Lessee  i).  Lynn,  2  How.  59;  (Ct.)  119;  Maude  v.  Rhodes,  4  Dana, 
Hickey's  Lessees.  Stuart, 3  How.  762;  (Ky.)144;  Austint).  Bodle, 4  Monroe, 
McEhnoyle  v.  Cohen,  13  Pet.  312;  (Ky.)  434;  Phelps  «.  Ilolker,  1  Dall. 
Williamson  v.  Berry,  8  How.  540;  (Pa.)  261;  Hitchcock  «.  Aicken,  1 
D'Arcy  «.  Ketchum,  11  How.  165;  Cairte,  (N.  Y.)  460;  Miller  «.  Sharp, 
Thompson  ®.  Whitman,  18  Wall.  457;  3  Randolph,  (Va.)  41;  Hopkirk  v. 
Eaton  V.  Badger,  33  N.  H.  228;  Bridges.  4  Henlng  &  Mnnford,  (Va.) 
Carleton  «.  Washington  Ins.  Co.  35  413;  Smith  i).  Cutchen,  38  jMo.  415; 
N.  H.  162;  Webster  y.  Reed,  5  Wend.  Darrance  v.  Preston,  IS  Iowa.  396; 
156;  Bissell  v.  Briggs,  9  Mass.  462;  Hakes  «.  Shupe,  27  Id.  465;  jMilc.b- 
Commonwealth  v.  Greene,  17  Id.  514,  ell's  Admr.  v.  Gray,  18  lud.  123. 


TERRITORIAL    LIMITS.  339 

relation  to  the  State  in  wliicli  they  may  be  sitting,  nor  to  its 
iaws,  which  warrants  them  in  giving  effect  to  judgments  ren- 
dered in  disregard  of  jurisdictional  requisites. 

Even  if  a  State  has  passed  a  statute  authorizing  its  courts  to 
take  jurisdiction  of  personal  actions  against  debtors  or  others 
who  cannot  be  reached  by  process,  or  of  property  actions  when 
the  property  cannot  be  seized  actually  or  constructive!}^;  and 
if  the  courts  proceed  accordingly  and  render  judgments,  such 
judgments  are  not  to  be  regarded  by  the  courts  of  other  States, 
nor  by  federal  courts  sitting  within  the  State,  nor  by  courts  of 
the  State  itself,  for  the  reason  that  no  State  can  exercise  power 
beyond  its  bounds,  nor  conclude  persons  or  property  beyond 
them.  Such  statutes  have  been  passed;  such  power  has  been 
assumed  and  exercised,  in  more  than  one  State,  though  very 
rarely.  Courts  have  been  thus  nominally  authorized  to  take 
cognizance  of  personal  actions  against  non-residents,  after  pub- 
lication notice,  without  personal  summons,  personal  appearance, 
or  attachment  of  property;  but  the  Supreme  Court  of  the 
United  States  has  decided  such  proceedings  under  such  a 
statute  to  be  jurisdictionless,  null  and  void. ^ 

The  practice  of  proceeding  by  personal  action  against  a 
non-resident  debtor,  after  notice  of  publication,  with  the  view 
to  reach  his  property  thereunder,  situated  within  the  State, 
by  execution  following  judgment,  has  been  defended  in  this 
way:  "Attachment,"  say  its  defenders,  "is  nothing  more  than 
a  preliminary  seizure  to  aid  final  execution;  it  is  as  ellective, 
when  made  after  judgment  as  if  made  before,  provided  the 
property  remains  within  the  jurisdiction  so  that  it  can  be  found; 
it  may  be  subjected  to  the  payment  of  its  non-resident  owner's 
debt  if  attached  preliminarily  and  the  debtor  notified  by  pub- 
lication; and  why  may  he  not  be  notified  by  publication  with- 
out any  preliminary  attachment,  and  the  proceeding  go  on  to 
judgment  to  be  followed  by  a  writ  oi  fieri  facias  f'' 

The  answer  is  that  attachment  is  something  more  than  a 
preliminary  seizure  to  aid  execution,  if  the  debtor  be  not  per- 
sonally served  and  does  not  appear.     It  is,  in  such  case,  an  act 

'  Pennoyer  v.  Neff,  95  U.  S.  714 — the  case  involving  a  statute  of  Oregon. 


uo 


JURISDICTION. 


essential  to  jnrisdiction.  The  publication  notice  does  not 
bring  the  debtor  into  court,  but  attachment,  validly  laid,  brings 
his  property  into  court. 

Is  the  record  of  a  judgment  of  a  court  in  another  State 
entitled  to  full  faith  and  credit,  under  art.  4,  ^1  of  the  Consti- 
tution of  the  United  States,  only  when  the  court  had  jurisdic- 
tion of  the  parties?  May  a  defendant,  when  sued  upon  a 
judgment  rendered  in  another  State,  plead  and  prove  that  he 
was  not  there  served  with  process?  No  —  if  there  was  process 
against  his  property  and  he  had  notice.* 

To  the  rule  of  comity  there  is  this  exception:  no  court  is 
bound  to  give  "  faith  and  credit"  to  judgments  rendered  in 
other  States,  when  their  enforcement  would  be  violative  of  the 
policy  or  the  juridical  morality  of  its  own  State. 

The  topic  of  this  chapter  has  not  been  exhausted.  The 
jurisdiction  under  whicli.  goods  officially  though  illegally 
attached  may  be  protected  from  replevy  by  encroachiug  courts, 
and  some  other  species  of  qualified  judicial  authority,  will  be 
noticed  hereafter;  and  there  will  be  necessary  recurrence  to  the 
powers  already  treated.  Jurisdiction  is  half  the  whole  subject 
of  Attachment  and  Garnishment,  and  it  mast  interline  all  the 
remaining  chapters. 

1  See  Oilman  v.  Gilman,  126  in  a  State  other  then  Massachusetts 
Mass.  26;  but  the  question  was  not  in  a  proceeding  iti  rem,  would  be 
whether  a  judgment  duly  rendered      entitled  to  lull  faith  and  credit. 


NATUKE    OF    THE    PKOCEEDING.  3il 


CHAPTER    XI. 

CHARGING    THE    GARNISHEE. 

§  1.  Nature  of  the  Proceeding.  §  5.  The  Answer. 

2.  Interrogatories.  6.  Amended  Answer. 

3.  Default.  7.  Traverse  of  the  Answer. 

4.  Exceptions  to  Interrogatories.  8.  Charging  Order,  Interest  and 

Costs. 

Sec.  1.    Nature  of  the  Proceeding. 

Garnisliment  is  the  warning  given,  by  the  plaintiff  in  a  suit, 
to  a  third  person  who  owes  the  defendant  or  has  property  of 
the  defendant,  prohibiting  him  from  paying  his  debt  or  deliv- 
ering the  property  to  the  latter  before  the  decision  of  the  suit, 
and  bidding  him  to  hold  the  money  or  property  subject  to  the 
order  of  the  court  when  the  decision  is  rendered.  It  is  a 
species  of  seizure  by  notice,  made  by  order  of  court,  at  the 
instigation  of  the  plaintiff,  to  facilitate  the  execution  of  any 
judgment  that  may  be  rendered  against  the  defendant  by  secur- 
ing and  preserving  such  property  and  credits  of  the  defendant 
as  are  liable  to  execution.  It  is  not  such  a  seizure  as  to  make 
the  serving  officer  the  custodian  of  that  which  is  seized,  but 
rather  such  as  to  make  the  defendant's  debtor  or  his  property- 
holding-agent  the  keeper  of  the  thing  arrested  in  his  hands. 
It  is  the  process  by  which  the  third  person  thus  indebted  or 
entrusted  is  brought  into  court  and  made  subject  to  the  decree 
to  be  rendered,  though  not  strictly  made  a  party  to  the  suit.  It 
is  a  summons  for  him  to  appear  and  answer  whether  or  not  he 
has  proj)erty  of  the  defendant  or  is  indebted  to  him,  as  well  as 
a  warning  against  payment  or  delivery  to  the  defendant  under 
])enalty  of  rendering  himself  liable  to  pay  a  like  amount  to  the 
plaintiff  in  case  he  should  succeed  in  the  suit  then  pending,  or 
without  such  contingency  when  garnishment    is   in  aid  of  the 


3iS  ClIAKGING    THE    GARNISHEE. 

execution  of  a  judgment  alread)^  rendered.  It  is  an  attaclnnent 
in  the  hands  of  a  third  person,  in  an  attachment  suit,  or  a  seiz- 
ure in  such  hands  by  way  of  executing  an  ordinary  judgment 
against  the  defendant.* 

The  proceeding  against  the  garnishee  can  be  explained,  and 
all  its  peculiarities  and  anomalies  presented,  more  easily  when 
treated  as  a  suit  than  when  described  as  something  different. 
It  is  strikingly  dissimilar  to  all  other  suits  in  several  particulars, 
yet  it  is  a  judicial  cause  between  parties*  it  is  begun  by  a  sum- 
mons or  its  equivalent,  and  it  results  in  a  judgment,  with  all 
the  other  ch:iracteristics  essential  to  a  law-suit.  In  this  pro- 
ceeding there  may  be,  and  there  often  is,  a  litigious  contest; 
witnesses  may  be  introduced  by  either  party;  an  issue  of  fact 
maybe  tried  by  jury;  judgment  may  be  rendered  for  or  against 
the  garnishee;  judgment  against  hira  may  be  executed;  and 
appeal  may  follow  judgment.  "When  there  is  such  litigious 
contest,  the  existence  of  a  suit  is  readily  apparent;  but  when, 
after  summons,  in  response  to  interrogatories,  the  garnishee 
answers  so  as  to  preclude  any  contest,  is  the  garnishment  pro- 
ceeding a  suit?  Should  he  unequivocally  deny  liability  and 
obtain  his  discharge;  or  admit  it,  and  acquit  himself  by  paying 
or  delivering  to  the  court;  or,  making  no  opposition,  should 
acknowledge  his  liability  and  submit  to  the  order  of  court,  could 
it  be  rightly  said  of  him  that    he  is  only  a  witness ?2 

Xs  in  any  law-suit  whatever,  tlie  defendant  may  decline  to 

1  Jaffray's  Appeal,  101  Pa.  St.  583;  10  Grattan,  284;  Bigelow  v.  Andress, 

Lnsh    V.    Galloway,    53    Wis.    164;  31  111.  322;  Walcott  «.  Keith,  2  Fos- 

Swett  V.  Brown,  5  Pick.  178;  Beuton  ter,  196;  Renneker  v.  Davis,  10  Rich- 

9).  Snyder,  22  Minn.   247;  Blaisdell  v.  ardsou's  Eq.  289;  Wilder  v.  Weather- 

Ladd,    14   N.    H.     129;     Padden  v.  bead,  32  Vt.  765;  Johnson  ».  Gorliam, 

Moore,  58  Iowa,   703;    Kennedy   v.  6  Cal.  195;  Hicks  v.  Gleason,  20  Vt. 

Brent,  6  Or.  187;  Matthews  v.  Smith,  139.     In  Wisconsin,  the  garnishee  is 

13  Neb.  178;  Tindell  «.  Wall,  Busbee,  considered  a    party,  and   the  court 

3;  Wells  V.  American   Express   Co.  niaj^  order  him  to   show  his  title  or 

55  Wis.  23;    Thompson   v.   Allen,  4  contract  before  issue  joined  on  his 

Stewart  &   Porter,   184;  Watkius   v.  answer:  Lusli  v.   Galloway,  52  Wis. 

Field,  6  Ark.  391;  Bryan  v.  Lashley,  104. 

13  Smedes  &  M.  284;  Martin -y.  Fore-  ^  xi^o^^pgon   v.   Silvers,   59    Iowa, 

man,    18    Ark.   249;     Tillinghast   v.  670:  A  wile  m:iy  be   garnished  in  a 

Jolins'm,  5  Ala.  514;  Hacker  v.  Stev-  suit  against  her  liusbj»nd  but  cannot 

ens,  4  McLean,  535 ;  Moore  v.  Holt,  be  made  a  witness  against  him. 


NATURE    OF    THE    rKOCEi:DINO.  343 

make  issue,  may  admit  all  tliat  the  plaintiff  alleges,  may  comply 
at  once  with  the  demand  and  avoid  any  litigious  contest,  so  in 
garnishment  proceedings,  the  party  against  whom  the  process 
is  directed  may  avoid  making  any  issue  by  acknowledging  all 
that  the  plaintiff  alleges;  but  the  acknowledgement  would  not 
render  the  proceeding  in  the  latter  case  different  from  that  in 
the  former,  so  far  as  concerns  the  question  whether  it  is  a 
suit. 

If  the  subject  of  garnishment  can  be  simplified  by  treating 
the  proceeding  as  a  suit,  and  by  presenting  it  in  the  order  of  its 
progress  from  the  summons  to  the  final  acquittance  of  the 
garnishee  from  all  responsibility,  the  reader  will  perceive  that 
the  question  is  not  one  involving  mere  verbiage.  If  this  method 
of  treatment  be  found  advantageous  to  the  understanding  of 
several  peculiarities  of  the  proceeding,  and  of  jurisdictional 
points  frequently  involved,  he  will  further  perceive  that  the 
reasons  for  adopting  it  outweigh  those  founded  on  the  differ- 
ences between  this  and  all  other  legal  causes. 

If  the  proceeding  is  a  law-suit,  it  is  such  from  its  incipiency; 
and  not  merely  from  the  time  the  plaintiff  takes  issue  and 
traverses  the  answer.  Judgment  eventiially  follows,  whether 
the  plaintiff's  interrogatories  be  answered  so  as  to  charge  or 
discharge  the  garnishee.  Up  to  the  point  where  issue  is  joined, 
the  garnishee  is  none  the  less  a  party  because  he  is  like  a 
witness;  just  as  an  ordinary  defendant  is  none  the  less  a  party 
by  reason  of  the  service  of  interrogatories  upon  him  which 
lie  is  bound  to  answer  as  though  he  were  a  witness. 

The  plaintiff  virtually  sues  the  garnishee  for  a  debt  due  the 
defendant,  by  the  process  of  garnishment.  lie  takes  the  shoes 
of  the  latter  and  asserts  the  rights  which  the  latter  has  against 
a  third  person.  lie  has  to  make  out  the  case  against  the  garn- 
ishee, (where  he  is  permitted  to  do  so,)  unless  the  indebtedness 
to  the  defendant  be  admitted  by  the  garnishee.  On  the  other 
Jiand,  the  defendant  to  the  main  action  does  not  sue  the  garni- 
shee, though  the  garnishment  is  based  U]ion  the  obligation  due  the 
defendant.  Denying  indebtedness  to  the  plaintiff,  and  resist- 
ing jiayment,  he  is  averse  to  the  success  of  the  jilaintiff's  side 
action  against  the  third  person. 


344  CHARGING    THE    GARNISHEE. 

Standing  in  the  defendant's  place,  the  plaintiff  can  have  no 
greater  rights  than  he,  had  the  garnishee  been  sued  by  the 
defendant.  On  the  otlier  hand,  if  the  garnishee  denies  indebt- 
edness, he  has  the  sairie  rights  of  defense,  and  no  more  nor 
less,  than  if  sued  by  his  creditor.  The  proceeding  may  there- 
fore be  called  a  suit.^ 

The  garnishee,  how^ever,  is  not  a  party  to  the  suit  between 
the  plaintiff  and  the  defendant:  he  is  only  a  party  to  the  snit 
against  himself  in  which  the  plaintiff  urges  the  rights  of  the 
principal  defendant  against  the  garnishee.  The  fact  that  the 
plaintiff*  and  the  garnishee  are  both  citizens  of  the  same  State 
is  no  obstacle  to  the  removal  of  an  attachment  suit  to  the  fed- 
eral court. 2  It  is  the  suit  between  the  attaching  creditor  and 
his  debtor  that  i^  thus  removed,  because  one  of  these  parties 
resides  in  another  State;  and  to  this  contest,  the  garnishee  is 
not  a  party  litigant.  Attachment  suits  are  thus  transferable, 
like  other  actions.  ^ 

It  is  lield  tliat  the  garnishment  contest,  between  the  plaintiff 
and  the  garnishee,  is  not  removable  apart  from  the  principal 
suit.*  Under  whatever  State  statute  it  may  be  brought,  and 
however  one  suit  may  differ  from  another  in  other  respects,  the 
garnishment  suit  never  stands  alone,  whether  it  is  nnited  with 
the  principal  cause  in  the  same  court  or  is  brought  separately  in 
a  different  court;  whether  the  process  against  the  garnishee  is 
by  summons  to  answer  interrogatories  or  by  any  other  method; 
whether  in  the  principal  action,  there  is  service  effected  npon 
the  defendant  or  notice  by  publication  to  the  owner  of  the  assets 
attached. 

The  plaintiff's  right  of  action,  the  effectiveness  of  the  judg- 
ment,   and  the    protection    of  the    garnishee    from    subsequent 

'Zanz  t;.  Stover,  2  New   Mex.   29;  Moore,    58    Iowa,    70:^;    Tunstall    v. 

Travis  v.  Tartt,  8  Ala.  574;  Moore  v.  Worthington,   Hemstead,  662;  Wells 

Stainton,  22  Ala.   831;  Jones  v.   N.  v.  Am.  Ex.  Co.  55  Wis.  23. 
York  &   Erie  R.  R.  Co.  1  Grant,  457;  ^^qoIj  ^^  Whitney,  3  Woods,  715. 

Thorn  v.  Woodruff,  5   Ark.  55;  Mai-  nieith  v.  Levi,  1  McCrary,  343;  U. 

ley  V.  Altman,  14  Wis.  22;  Gorman  r.  S.  Rev.  Stat.  §  646;  see  Barney  t'.  Gloio 

Swagrg-erty,   4  Sneed,    560;  Smith  v.  Bank,  5  Blatchf.  110;    Bates  t».  Days, 

Dickson,    58   Iowa,    44^;  Caldwell   v.  11  Fed.  R.  529.     Post,  p.  48o. 
itewiu-t,    30  Iowa,    37U;    Padden   v.  *  Pratt  y.  Albri-ht,  10  Bissel   511. 


NATURE    OF    THE    TROCEEDING.  345 

attack  after  payment  under  judgment,  depend  upon  the  princi- 
pal action:  its  rightful  institution,  rightful  judgment  tliereon 
and  rightful  execution  of  the  judgment.  Whatever  dissoh-es 
the  attachment  releases  the  garnishee,  though  judgment  may 
have  been  rendered  rtgainst  him,  Reversal  of  the  judgment 
against  the  principal  defendant  on  appeal  will  virtually  reverse 
the  judgment  against  the  garnishee  though  not  appealed. 

Though  the  principal  judgment  may  hold  good  when  the 
auxiliary  one  is  reversed,  the  converse  is  not  trne.  In  no  case 
can  the  judgment  against  the  garnishee  stand  after  that  against 
the  principal  defendant  has  been  set  aside  or  reversed.  ^ 

Though  the  suit  against  the  garnishee  always  is  auxiliary, 
the  proceeding  against  the  garnisheed  property  or  credit  is  not 
always  auxiliary.  When  the  attachment  debtor  is  not  served 
and  not  in  court,  and  is  notified  only  by  publication,  the  prin- 
cipal suit  is  the  proceeding  in  reia\  and  if  nothing  has  been 
attached  otherwise  than  in  the  garnishee's  hands,  the  process 
jigainst  what  is  garnisheed  is  the  principal  suit.  Curiously 
enough,  in  such  case,  the  personal  suit  against  the  garnishee 
becomes  auxiliary  to  that  against  the  thing  in  his  hands.  Should 
the  debtor  appear  at  a  late  stage  of  the  case,  he  would  defend 
against  the  attachment  of  his  property  or  interest  in  the  hands 
of  another,  while  the  garnishee  would  evidently  occupy  a 
secondary  place  though  his  position  would  not  be  changed.  It 
is  apparent,  (whether  he  afterwards  appear  or  not,)  that  the 
court's  jurisdiction  depends  upon  something  having  been  seized 
when  no  defendant  has  been  served.  And,  if  nothing  has  been 
attached  except  in  the  garnishee's  hands,  it  is  such  attachment 
that  has  given  the  court  jurisdiction;  and,  without  it,  no  suit 
could  be  maintained  ao-ainst  the  garnishee. 

The  suit  against  the  garnishee  is  hypothetical.  The  right  of 
action  depends  upon  the  right  of  the  plaintiff  in  the  main  suit. 
If  the  plaintiff  is  the  creditor  of  the  principal  defendant,  he 

1  Lovejoy  ij.   Albree,   33  Me.  414;  r.  Baker,  3   Ark.   509;    Matthews  v. 

Greene  ?).  Tripp,  11  R.  I.  424;  Pierce  Sands,   29  Ala.   136;  Flash  v.   Paul, 

V.  Carlton,  12  111.   358;  AVhitehead  v.  Id.  141;   Edrington  v.  Allsbrooks,  31 

Henderson,  4  Sm.  &  M.    704;  Atche-  Tex.  186. 
son  «.  Smith,   3   B.  Mon.  503;  Desha 


346  CILAKGING    THE    GARNISHEE. 

lias  a  riglit  of  action  against  the  garnishee;  lie  may  step  into 
tlie  shoes  of  the  principal  defendant  and  so  become  the  creditor 
of  the  garnishee.  In  other  words,  he  has  no  right  to  recover 
of  the  garnishee  unless  he  can  show  that  he  oiiglit  to  be  subro- 
gated to  the  right  of  the  garnishee's  creditor,  and  empowered 
to  sue  on  that  creditor's  right.  In  yet  other  words,  the  attach- 
ing creditor  proceeds  against  the  garnishee  on  the  assumption 
that  what  is  due  by  the  latter  to  the  plaintiff's  debtor  may  be 
diverted,  under  the  law,  to  the  payment  of  the  plaintiff;  and 
this  assumption  must  be  verified  by  judgment  before  his 
right  so  to  divert  the  payment  can  be  finally  settled.  In  all 
the  proceedings  before  final  judgment  in  the  principal  suit,  the 
plaintiff's  right  against  the  garnishee  is  therefore  hypothetical. 
Though  there  be  a  judgment  holding  the  garnishee  chargeable 
in  an  unqualified  decree,  it  is  understood  to  be  dependent  upon 
the  final  judgment  against  the  principal  defendant.  He  is  held 
chargeable  if  the  plaintifi'  should  make  out  his  main  case. 
The  decree,  though  literally  positive  and  free  from  all  contin- 
gency, is  qualified  by  law  so  as  to  render  it  dependent  upon 
the  principal  judgment. 

The  garnishee  is  sued  by  one  to  whom  he  owes  nothing;  to 
whom  he  is  under  no  obligation  whatever.  He  is  summoned 
into  court  by  one  who  is  not  his  creditor,  that  he  may  be  made 
to  pay  to  a  stranger  what  he  owes  to  liis  real  creditor;  or  to 
deliver  what  property  he  possesses,  belonging  to  his  principal, 
into   the  hands   of  a  court  officer  at  the  demand  of  a  stranger. 

He  is  sued  by  one  not  a  party  to  the  contract  by  which  he 
became  indebted,  and  is  required  to  perform  his  contract-obliga- 
tions by  violating  them;  at  least,  the  letter  of  the  contract  is 
disregarded  by  the  law  which  diverts  the  payment.  The  demand 
upon  him  is  that  he  pay  or  deliver  to  such  stranger,  not  only 
without  authority  from  his  creditor  or  principal  so  to  do,  but 
usually  contrary  to  the  desire  of  the  latter. 

The  law  comes  between  the  contracting  parties,  and  by  pre- 
serving the  spirit  of  the  contract  while  disregarding  the  letter, 
requires  the  obligor  to  acquit  himself  of  his  duty  by  perform- 
ing it,  not  at  the  bidding  of  the  obligee  but  of  a  creditor  of  his, 
provided    such    creditor   sustain    the  allegations  of   his    suit. 


NATURE    OF    THE    PROCEEDING.  847 

Pending  tlio  in.'iin  action,  tlie  obligor  made  garnishee  is  required 
to  stand  still,  holding  in  his  hands  the  property  or  credit  therein 
attached,  awaiting  the  judgment  of  the  court:  being  mean- 
while protected  from  the  man  whom  he  really  owes  or  whose 
property  he  has  in  possession. . 

The  plaintiff  is  legally,  (though  hypothetically,)  subrogated 
to  the  right  of  action  which  his  debtor  has  for  the  recovery  of 
property  or  credits  due  the  debtor.  He  sues  for  such  property 
and  credits  in  his  own  name,  but  upon  the  cause  of  action 
acquired  by  such  legal  subrogation.  He  can  recover  no  more 
than  his  debtor  might  have  recovered;  he  cannot  be  limited  to 
less,  if  his  own  c^aim  is  sufficient  to  cover  it. 

This  subrogation  of  a  right  of  action  is  the  more  remarkable 
when  considered  as  the  result  springing  from  an  ex  j)arte  show- 
ing on  the  part  of  the  plaintiif.  He  sues  his  debtor,  makes 
affidavit  of  the  requisite  facts;  and,  on  the  basis  of  such  suit 
and  showing,  his  right  of  action  stands  against  a  third  person 
who  owes  him  nothing  and  holds  no  property  of  his.  Though 
his  allegations  may  have  been  denied  by  the  defendant  in  the 
principal  suit,  his  riglit  of  action  against  the  defendant's  debtor 
or  property-holdiug-agent  will  be  maintained  by  the  court  till 
the  decision  of  the  issues  involved. 

The  subrogation  enables  the  plaintiff  to  reach  property  and 
credits  of  his  debtor,  in  third  hands,  which  rightfully  ought  to 
be  made  liable.  It  is  a  means  of  obtaining  the  ends  of  justice 
under  circumstances  which  would  favor  the  non-paying  debtor 
were  there  no  such  subrogation.  There  is  no  reason  for 
exempting  from  execution  the  debtor's  credits  or  his  property  in 
third  hands;  bat  how  could  they  be  reached  unless  the  plaintiff 
be  subrogated  to  the  right  of  action  against  the  debtor's  debtor 
or  agent? 

The  law  finds  its  justification  in  this  rightful  purpose.  It 
violates  no  constitutional  provision  when  it  gives  the  creditor 
a  remedy  for  the  wrong  done  him  by  the  debtor  who  does  not 
pay  a  debt  due,  and  who  has  nothing  in  hand  out  of  which  pay- 
ment can  be  extracted.  It  violates  no  constitutional  provision 
when  it  creates  a  right  of  action,  upon  an  ex  parte  showing, 
agair.st  the  debtor's  debtor,  even   though  the  sum  claimed  by 


/ 


348 


CIIAKGING    THE    GARNISHEE. 


the  plaintiff  may  he  yet  undue;  for  it  subserves  tlie  ends  of 
justice  between  all  the  parties,  promotes  the  general  welfare 
and  tends  to  circumvent  fraud  and  prevent  collusion  between 
the  defendant  and  the  garnishee. 

No  contract  can  be  violated,  no  promise  to  pay  absolved,  no 
interference  between  lawfully  contracting  parties  authorized,  by 
the  legislator,  without  contravention  of  the  constitution;  and 
if  the  subrogation  of  the  creditor  to  the  right  of  action  which 
his  debtor  has  as  the  creditor  of  another  pe]'Son,  and  the  warn- 
ing against  the  payment,  to  the  rightful  creditor,  of  a  debt  due; 
and  the  suspension  of  all  operation  under  a  valid  contract  till 
the  issue  between  the  attachment  plaintiff  and  the  attachment 
defendant  be  decided,  violate  contract,  absolve  from  payment  or 
interfere  with  contracting  parties  without  authority,  they  are 
indefensible. 

The  immediate  effect  of  the  attachment  of  the  defendant's 
credits  or  goods  in  third  hands,  is  not  to  extinguish  his  rights 
further  than  to  prevent  his  present  control  of  them;  and  not 
to  create  any  rights  in  the  plaintiff  further  than  to  secure  him 
the  ultimate  opportunity  of  making  his  money  out  of  sucli 
credits  or  goods  thus  subjected  to  legal  custody.  As  the  alleged 
right  of  the  attaching  creditor  is  merely  ad  rem,  the  ownership 
of  the  attached  property  is  not  divested  by  the  attachment, ^ 
nor  by  the  judgment  perfecting  the  attachment  lien.  It  is 
only  where  seizure  is  in  vindication  of  ?ijus  i7i  re,  (right  to 
the  thing,)  that  judgment  is  conclusive  upon  the  title. 

See.  2.    Interrogatories. 

The  attaching  creditor  tiles  in  court  interrogatories  to  be 
served  on  the  person  supposed  to  owe  the  debtor  or  to  hold 
property  of  his.  The  interrogatories  should  be  confined  to  the 
ascertaining  of  one  or  both  of  the  facts — indebtedness  and 
possession  of  property.  They  should  be  further  confined  to 
such  indebtedness  as  would  render  the  person  addressed  liaV>le 
to  garnishment  in  case  of  afiirmative  answers,  and  to  such  pos- 
session as  would  render  him  liable.     They  must  not  be  imper- 

1  Scarborougli  v.   Malone,  67   Ala.  570. 


INTERROGATORIES,  319 

tinent;  nor  unnecessarily  harassing,  nor  calculated  to  expose 
sucii  business  relations  between  tlie  person  addressed  and  his 
creditor  as  the  exigencies  of  the  occasion  do  not  require  to  be 
exposed.  They  must  not  be  such  us  to  entrap  the  garnishee 
into  admissions  which  he  would  not  be  required  to  make  were 
questions  plain  and  readily  apprehensible;  they  must  not  tend 
to  make  liim  criminate  himself;  they  must  not  be  such  as  to 
deprive  him  of  any  just  ground  of  defent^e  against  his  own 
creditor  in  case  of  a  subsequent  suit.  They  should  not  be 
unnecessarily  prolix  or  repetitious.  They  should  contain  all 
that  tlie  attaching  creditor  wishes  to  ask,  so  as  to  leave  no  occa- 
sion for  supplemental  interrogatories;  but  there  may  be  supple- 
mental ones,  under  leave  of  court.  If  the  first  set  have  not 
been  served,  they  may,  by  leave,  be  withdrawn  and  amended; 
or,  if  served,  snpplemental  questions  may  be  propounded. 
There  is  good  ground  for  application  to  file  supplemental  inter- 
rogatories, if  new  facts  have  come  to  the  knowledge  of  the 
interrogator  after  the  filing  of  the  first. 

To  eflect  their  object;  to  ascertain  whether  the  person 
addressed  is  really  liable  as  a  garnishee  to  the  amount  of  the 
debt  claimed  of  the  defendant  or  less;  to  avoid  the  necessity  of 
applying  for  permission  to  file  amended  or  supplemental  ques- 
tions, the  interrogatories  should  be  full,  frank,  searching, 
pointed,  respectful,  pertinent  and  not  susceptible  of  being 
evaded.  They  should  be  such  as  to  draw,  if  possible,  even 
from  a  double-dealing  man,  the  truth  respecting  his  indebted- 
ness to  the  defendant,  or  his  relation  to  the  defendant  as  the 
custodian  of  property  liable  to  garnishment.  They  should  be 
sufiiciently  incisive  so  as  to  lay  bare  all  the  facts  within  the 
bounds  circumscribing  the  garnishee  as  a  mere  stakeholder  dis- 
interested as  to  whom  he  may  be  called  upon  to  pay  or  to  deliver; 
but,  as  before  remarked,  they  should  not  go  beyond  those  bounds 
to  render  the  garnishee  worse  ofi'  than  he  was  before.  They 
may,  within  those  bounds,  cut  into  transactions,  facts,  and 
various  matters  tending  to  bring  out  the  one  essential  fact  of 
legal  responsibility  as  garnishee;  for,  as  the  garnishee  is  not 
supposed  to  know  the  exact  boundary  of  his  rights  and  exemp- 
tions when  the  circumstances  are  complicated,  the  bringing  out 


350  CnAUGING    THE    GAKNISMEE. 

of  all  the  particulars  may  be  of  great  importance  to  enable  the 
cuurt  to  understand  and  decide  whether  or  not  he  is  chargeable. 

The  interrogatories  should  not  be  general  as  to  the  liability 
of  the  garnishee.  They  should  show  whether  he  is  meant  to 
be  charged  as  the  holder  of  the  defendant's  propt3rty,  or  as  the 
debtor  of  the  defendant,  or  both;  however  the  case  may 
be,  they  should  cover  the  necessary  ground,  i  If  asked  whether 
he  has  goods  or  chattels  of  the  defendant  sul)ject  to  execution, 
the  garnishee  would  not  be  bound  to  state  that  he  owes  the 
defendant,  and  might  render  himself  liable  to  the  latter  after 
liaving  paid  such  debt  into  court,  by  such  voluntary  statement. 
So,  if  asked  whether  he  is  indebted,  he  should  voluntarily  dis- 
,clo3e  that  he  held  property,  he  might  afterwards  be  subjected 
to  account  for  it  to  the  defendant.  The  plaintiff  should  ask  all 
that  he  wishes  to  know,  within  legal  limits,  concerning  what- 
ever the  garnishee  has  in  possession  belonging  to  the  defendant 
and  what  he  ow^es  to  the  defendant. 

If  a  corporation,  such  as  a  railroad  companj^,  is  garnished, 
the  interrogatoi'ies  should  not  ask  the  ofticer  or  agent  upon 
whom  tliey  are  served  what  lie  owes  to  the  defendant,  since  his 
answer  would  not  be  binding  upon  the  company.  ^ 

The  questions  may  cover  the  time  of  service,  the  time  of 
answering,  and  subsequent  time  where  the  statute  authorizes  it, 
so  as  to  provoke  answers  exposing  the  relations  of  the  garnishee 
as  the  debtor  or  property-liolding  agent  of  the  defendant  at  any 
or  all  of  those  times. ^  If  only  required  to  answer  as  to  the 
time  when  he  was  served  with  process,  the  garnishee,  if  he  had 
nothing  then  and  so  answers,  may  afterwards  become  indebted 
to  the  defendant,  or  receive  money  for  him  a,nd  pay  him,  or 
receive  goods  for  him  and  deliver  them  to  him,  with  impunity. 
Or,  the  garnishee  might  pay  or  deliver  to  another  creditor  of 
the  defendant.  So  also  when  there  is  no  law  for  covering  sub- 
sequent time. 4  Should  the  attaching  creditor  sue  out  a  second 
writ  of  garnishment,  or  amend  his  interrogatories  and  have 

1  Botsford  V.  Simmons,  32  Mich.  50  Ala.  498;  Bliss  v.  Smith,  78  111. 
352.  oo'j ;  Cowdiy  v.  Walker.  50  N.  PT.  533. 

2  Varnell  «.  Speer,  55  Qa.  133.  *  Hoffman  -y.   Fitzwilliam,  81   111 

3  N.  O.  M.  &  C.  R.  H.  Co.  «.  Long,  521. 


DEFAULT.  351 

tlieiTi  re-served,  so  as  to  cover  tlie  subsequent  time,  he  would  be 
too  late,  if  meanwhile  the  garnishee  had  divested  himself  of 
his  indebtedness  or  possession  of  attachable  property. *  There 
is  no  necessity  for  amending  the  pleading  or  tiling  a  supplemen- 
tal complaint,  when  the  garnishee's  answer,  though  denying 
possession  of  the  defendant's  property,  discloses  facts  which 
show  that  he  is  in  possession  of  it.^ 

Upon  the  principle  that  the  third  person  holding  the  funds 
of  a  defendant  is  disinterested  as  to  whom  he  pays  if  he  gets 
acquittance,  the  practice  is  liberal  towards  amendments  made 
by  the  attaching  creditor,  even  after  interrogatories  have  been 
answered  by  the  garnishee.  This  has  gone  so  far  that  when  a 
garnishee  had  denied  indebtedness  to  the  defendant  but  admitted 
owing  the  tirm  to  which  the  defendant  belonged,  his  answers 
were  held  to  bind  him  after  the  plaintiff  had  subsequently 
changed  his  pleadings  and  made  the  tirm  defendant. ^  Such 
practice,  however,  is  not  to  be  commended.  The  proper  course 
is  to  issue  a  second  set  of  interrogatories  and  get  the  answer 
that  the  indebtedness  is  to  the  defendants  as  then  in  court. 
Where  no  other  interests  had  intervened,  as  in  the  case  just 
cited,  no  evil  could  result  from  the  practice,  but  what  would 
have  been  the  state  of  things  if  some  other  creditor  had  mean- 
while attached  the  debt,  by  garnishment,  as  due  to  the  firm? 
Clearly  the  answer  to  the  first  interrogatories  would  not  have 
bound  the  garnishee.  Or,  what  if  the  garnishee  had  paid  the 
firm  immediately  after  answering,  before  there  was  any  defend- 
ant but  a  single  member  of  the  firm?  His  payment  would  have 
been  legal,  regular  and  sufiicient  to  discharge  him  of  all 
liability.  The  right  practice  is,  in  case  of  the  joinder  of  new 
parties  in  order  to  reach  a  credit  of  the  tirm  in  the  hands  of  a 
third  person,  to  renew  the  garnishment. 

See.  3.    Default. 

Should  the  person  summoned  as  garnishee  contumaciously 
fail  to  respond,  he  may  be  defaulted.     The  interrogatories  may 

J  Daniels  v.  Mienharrl,  53  Ga.  359.      Welles,  23  Minn.  475. 

2  Farmors'  and  Mechanics'  Bank  v.  ^  Sullivan  v.  Langley,  128  3Iass.  235. 


352  CHARGING    THE    GAIINISIIEE. 

he  talon  pro  confesso.  His  silence  is  deemed  assent,  if  the 
vjucstions  are  such  that  answers  favorable  to  the  inten-ogator 
would  make  out  the  char^eability  of  the  garnishee.  IJe  cannot 
complain  of  the  legal  result  of  his  own  laches.  Garnishment 
is  a  method  allowed  by  law  to  facilitate  justice  between  the  liti- 
gants, and  he  cannot  disregard  such  legal  method  with  im- 
punity. 

As  in  other  cases  of  default,  this  may  be  set  aside  by  the 
court  upon  proper  showing.  What  is  proper  showing  is  the 
satisfactory  explanation  of  the  neglect  and  seeming  contumacy. 
The  court  should  be  even  more  liberal  in  allowing  the  belated 
garnishee  to  answer  after  default  than  in  granting  the  privilege 
to  a  suitor  defaulted,  since  he  is  a  disinterested  party  in  the 
proceeding  so  far  as  any  prospect  of  being  benefitted  is  con- 
cerned yet  an  interested  third  person  so  far  as  the  danger  of 
being  injured  is  concerned. 

Even  if  he  has  answered  and  denied  indebtedness  and  posses- 
sion of  property,  he  may  in  certain  circumstances  be  defaulted 
for  not  answering  to  a  replication.  Even  if  he  have  no  notice 
of  such  replication,  he  may  be  presumed  to  know  whatever  is 
of  record  after  his  first  appearance,  when  the  suit  is  separate  or 
in  a  diliV-rent  court  from  that  of  tiie  princi]ial  one,  in  which  lie 
ought  not  to  be  ex]:>ected  to  follow  the  labyrinths  of  a  litigation 
in  which  he  is  not  an  interested  part}',  without  notice. 

When  the  garnishee  has  been  summoned  to  appear  in  court 
to  be  examined,  but  no  interrogatories  have  been  served  upon 
him,  he  ought  not  to  have  judgment  of  default  entered  against 
him,  without  further  effort  to  reach  him,  and  without  any  evi- 
dence showing  that  he  is  chargeable  as  garnishee.^  Nor  should 
he  be  defaulted,  after  answering,  on  unimportant  objections, 
such  as  that  the  answer  was  filed  in  vacation.  2  Where  required 
to  appear  for  examinationin  court,  if  he  fails  to  do  so  but  files  his 
answers  instead,  they  may  be  stricken  out  and  default  entered.  ^ 
Whenever,  without  proper  reason  rendered,  he  fails  to  answer 
pertinent  interrogatories  properly  served  upon  him,  he  may  be 

»  Lewis  V.  Fanl,  29  Ark.  470.  Augusta,  53  Ga.  28. 

*  Curry  «.  The   National  Bank   of  ^  Penn  ».  Pelan,  52  Iowa,  535. 


DEFAULT.  353 

defaulted  and  the  interrogatories  taken  as  confessed.  Sucli 
judgment  makes  out  ^priiiva  facie  case  of  indebtedness. ^ 

If  ]ie  has  answered,  but  is  required  by  the  court  to  make  his 
answers  more  specific,  and  lie  refuses  or  neglects  to  do  so,  he 
may  have  judgment  by  default  rendered  against  him.^  The 
judgment  should  be  by  default,  and  not  final,  when  rendered 
against  a  garnishee  who  stands  by  his  plea  to  the  jurisdiction 
after  it  has  been  overruled.  ^ 

A  default  may  be  set  aside,  on  proper  showing,  at  the  term 
in  which  it  was  entered.*  At  a  following  term,  a  defaulted 
garnishee,  (unless  under  unusual  circumstances,)  would  come 
into  court  with  bad  grace  to  ask  leave  to  answer  and  suspend 
execution.  5  Even  though  he  offer  to  show  then  that  the  fault 
was  the  result  of  a  mistake  or  surprise,  the  court  will  refuse  to 
re-open  the  judgment  rendered  against  him.^  At  that  late 
stage,  however,  if  the  default  could  be  set  aside  without  injus-* 
tice  to  the  attaching  creditor,  the  court,  in  the  exercise  of  sound 
discretion,  might  grant  relief  upon  the  garnishee's  showing 
that  failure  to  answer  was  not  any  fault  of  his,  unless  where 
the  court  is  legally  inhibited  from  the  exercise  of  such  discre- 
tion after  the  close  of  the  term. 

What  is  an  excusable  mistake  is  a  question  within  the  court's 
cognizance. 

A  judgment  by  default,  rendered  against  a  garnishee  who  has 
failed  to  plead  though  notified,  will  not  be  set  aside  on  the 
ground  that  the  garnishee  was  taken  by  surprise;  or  tliat  there 
were  irregularities,  if  they  were  only  such  as  might  have  been 
prevented  by  his  timely  response.' 

1  Townsend  v.  Libbey,  70  Me.  162;      the  principal  defendant  in  a  justice's 
Freeman  ^^  Miller,  53  Tex.  372.  court,  judgment  in  the  same  amount 

2  Scamahorn  v.  Scott,  42  Iowa,  .520.       may  be  rendered  against  a  default- 
*  Toledo  etc.  R.  R.  Co.  v  Reynolds,       ing  garnishee.      Bushnell   v.   Allen, 

72  111.  487.  48  Wis.  460.    In  Iowa,  the  court  may 

♦Scamahorn    ■».    Scott,    42    Iowa,  issue  executions  against  a  defaulting 

529.  garnishee  two   days  after  judgment 

^  Id.  against  the  defendant.     Langford   «. 

6  Abell  V.  Simon,  49  Md.  318.  Ottumwa  Water  Power  Co.,  53  Iowa, 

'  Gibbons  v.    Cherry,   53   Md.  144.  415. 
lu  Wisconsin,  after  judgment  against 

23 


354:  CHARGING    THE    GxVKNISHEE. 

If  the  smnmons  was  not  sufficient  in  law  to  bring  the  garni- 
shee into  court,  and  he  is  detkultecl  for  non-appearance,  the 
default  is  void.  The  summons  should  be  signed  by  the  clerk,' 
or  the  proper  court  officer;  the  writ  should  show  the  case  in 
M-hich  it  is  issued,  ^  The  writ  must  show  that  the  attachment 
is  an  adjunct  of  the  principal  suit.^  In  short,  the  whole  pro- 
ceeding, including  the  summons  to  the  garnishee,  must  have 
been  pursuant  to  statute  authorization,  before  a  valid  default 
can  be  pronounced  against  the  garnishee. 

See.  4.    Exceptions  to  Interrogatories. 

The  garnishee  may  plead  to  the  jurisdiction,  not  only  to 
relieve  himself  from  the  care  of  being  drawn  into  the  attach- 
ment suit,  but  also  to  protect  himself  against  any  subsequent 
attack  by  the  defendant. *  He  may  so  plead,  if  at  all,  before 
answering.  Whatever  would  be  a  good  reason  to  sustain  the 
plea  were  the  suit  brought  by  the  defendant  would  be  good  here 
where  the  defendant's  creditor  is  proceeding  upon  the  defend- 
ant's right. 

"Want  of  jurisdiction  over  the  defendant  would  include  the 
want  of  it  over  the  garnishee,  since  the  hitter's  position  is  sub- 
sidiary to  that  of  the  former  respecting  the  court's  power  to 
hear  and  determine;  but,  beyond  this,  there  may  be  other 
reasons  why  the  garnishee's  obligation  cannot  be  passed  upon, 
though  the  defendant's  may. 

The  defendant  must  look  out  for  the  jurisdiction  so  far  as  he 
is  concerned;  for,  should  he  waive  all  objection,  he  cannot  after- 
wards hold  the  garnishee  guilty  of  laches  for  not  pleading  what 
he  might  have  pleaded  himself. 

1  Sheppard  v.  Powers,  50  Ala.  377.  Ala.  510;  Dew  ».  Bank  of  Ala.  9  Ala. 

2  Johnson  v.  McCutchings,  43  Tex.  323 ;  Bushnell  &  Clark  v.  Allen,  48 
553.  Wis.    460;    Harmon  «.  Birchard,   8 

3  Lewis  i;.  Wood  folk,  58Tenn.  25;  Blackf  418;  Webb  «.  Lea,  6  Yerg. 
Peak  ^).  Buck,  59  Id.  71.           •  473;  Robertson  «.  Roberts,   1   A.   K. 

*  National  Bank  v.  Titswortli,  73  Marshall,  247;  Featherston  ».  Comp- 
111.  591;  Wyalt'sAdm'r.  v.  Rambo,  29      ton,  8  La  Ann.  285. 


EXCEPTIONS    TO    IMTERR0GAT0EIE3.  355 

All  statutory  requirements  must  be  strictly  observed  to  the 
end  that  jiirit diction  may  vest. ^ 

It  may  be  that  processes  of  garnishment  are  issued  from 
courts  of  two  States,  on  or  about  the  same  time,  to  the  same 
garnisliee,  relative  to  the  same  debt.  Both  suits  may  have  the 
same  defendant,  and  the  same  person  summoned  as  his  debtor, 
though  the  attaching  creditors  be  different.  Under  such  cir- 
cumstances, which  creditor  ought  to  have  the  benefit  of  irarnish- 
ment?  To  which  should  the  garnishee  be  ordered  to  pay? 
Which  of  the  two  courts  should  maintain  jurisdiction  over  the 
garnishee,  and  which  should  yield  to  the  other?  Circumstances 
may  arise  from  time  to  time,  and  present  such  complication, 
that  it  will  be  difficult  to  answer  the  question  proposed;  but  it 
may  be  said,  in  a  general  reply  to  it,  that  whichever  court  lirst 
brings  the  garnishee  within  its  authority  so  as  to  be  entitled  to 
bis  lirst  answer,  ought  to  have  the  control  of  the  fund  or  debt 
subjected  to  garnishment  If  in  one  State  a  person  is  sum- 
moned as  garnishee,  and  afterwards,  (though  on  the  same  dav, 
it  may  be,)  he  is  summoned  as  such  in  another  State;  and  his 
answer  with  a  disclosure  of  his  second  summons  be  made  in 
the  court  of  the  lirst  State,  and  that  court  should  hold  him 
bound  as  garnishee,  the  court  of  the  second  State  should  yield, 
and  should  discharge  the  garnishee  upon  such  facts  being  made 
to  appear. 2  The  general  rule  that  payment  by  a  garnishee, 
under  judgment,  discharges  him,  is  applicable.^ 

Exceptions  to  interrogatories  may  be  taken  when  they  are  of 
such  character  that  the  law  does  not  require  that  they  should 
be  answered.  Persons  interrogated  respecting  funds  officially 
lield  which  are  not  subject  to  garnishment;  persons  questioned 
about  business   relations    of    such    character    that    neither   an 


»  Gibbon  v.  Bryan,  3  111.  App.  298.  v.  Vinette,  58  Wis,  619;  Wells  v.  Am. 

(And,  iu   III.,  the  judgment   against  Ex.  Co.  55  Wis.  23. 

the  garnishee  should    be   in  favor  of  ^Garit}^  v.  Gigie,  130  Mass.  It-k. 

the  defendant  in  execution   for   the  »  Stockwell     v.     McCracken,     109 

use  of  the  plaintiff.     Id.)  Railroad  Mass.  84;  American  Bank  v.  Rollins, 

V.  Todd,   11  Heisk.  549;    Greene   v.  99  Mass.  313;   Whipple  v.  Robbins, 

Tripp,  11  R.  I.   424;    Smith    v.  Mc-  97    Mass.  107;     Hull    v.    Blake,   13 

Cutchen,  38  Mo.  415 ;  Ford  v.  Dry  Mass.  153. 
Duck    Co.  50  Mich.  358;  McDonald 


356  CnARGING    THE    OARNISITKE. 

afRrmntive  Tier  a  negative  reply  would  avail  tlic  interrogator, 
may  except  and  inay  withhold  response  till  tlie  conrt  pass  npori 
the  exception.  All  impertinent,  disrespectlnl  and  illegal  inter- 
rogatories may  be  resisted  by  exception.  If  some  are  right  and 
others  wrong,  the  former  may  be  answered  and  the  latter  resisted. 
If  answers  have  been  filed,  and  then  further  interrogatories 
propounded  withont  leave  of  conrt,  the  garnishee  may  except 
that  he  has  already  answered  and  is  not  obliged  to  respond  a 
'second  time;  and '  then,  till  the  conrt  decide,  he  may  safely  be 
silent.  If  the  court  has  already  granted  leave  for  the  second 
propounding,  it  has  not  passed  at  all  upon  the  character  of  the 
questions;  dnd,  if  they  are  a  mere  repetition,  (either  in  the 
same  or  different  verbiage,)  of  those  already  answered;  or  if 
they  are  objectionable  for  any  other  reason,  the  garnishee  may 
yet  except — not  now  to  the  right  of  propounding,  but  to  the 
questions  propounded. 

It  is  often  of  the  highest  importance,  involving  the  garni- 
shee's future  protection,  that  he  should  resist  improper  and 
illegal  inquisition.  It  is  always  the  safer  course  to  proceed 
under  judicial  orders  and  not  to  do  unnecessary  things  which 
might  afterwards  be  charged  to  have  been  voluntary  disclos- 
ures. ^  He  is  not  bound  to  answer  irrelevant  interrogatories, ^ 
but  his  right  way  to  avoid  them. is  by  excepting  to  them,  and 
sul)mitting  the  question  of  relevancy  to  the  court. 

The  failure  of  the  summons  to  specify  the  time  within  which 
the  interrogatories  should  be  answ^ered,  is  not  a  good  ground  for 
exception.  3 

Where  the  practice  is  to  issue  a  writ  of  garnishment  as  mere 
process  to  bring  the  summoned  party  into  court,  demurrer  will 
not  lie  to  such  writ,  but  the  remedy  against  defects  is  by  plea 
ia  abatement  or  a  motion  to  quash.* 

A  co-defendant,  after  judgment  in  solido  against  two  or  more, 
if  garnished  in  execution,  may  personally  except,  ^  for  the  reason 

'Gould   v.   Meyer,    36  Ala.    5G5;  *  Cnrry  «.  Woodward,  50  Ala:  258. 

Gunn  V.  Howell,  35  Id.  144.  »  Bailey  v.  Lacey,  27    La.  Ann.  39. 

2  Rhine 'y.  Danville,  »S:c.  R.  R.  Co.  Richard  on  v.  Lacey,  Id.  63.  See 
10  Phila.  336.  Curry  v.  Woodward,  50  Ala.  258. 

3  Hearn  v.  Adamson,  64  Ga.  608. 


THE    ANSWER.  357 

that  execution  to  the   amount  of  the  whole  judgment  may  be 
directed  against  him  alone. 

The  garnishee  may  except  to  the  interrogatories,  (or  to  the 
suit  against  him,)  on  the  ground  that  the  plaintiff  had  not 
made  affidavit  to  sustain  his  iilleged  grounds  of  attachment, 
nor  given  the  statutory  bond  to  secure  the  defendant,  nor 
caused  publication  in  default  of  service.  It  is  necessary  that 
the  garnishee  should  set  up  these  exceptions  when  the  defendant 
himself  is  not  in  court,  for  the  purpose  of  future  protection. ^ 

Sec.  5.    The  Answer. 

The  answer  must  be  sworn,  must  be  responsive  to  the  inter- 
rogatories, must  be  categorical  when  the  questions  so  i-equire 
and  the  facts  will  so  admit,  and  may  be  accompanied  with  such 
explanation  as  is  necessary.  It  must  be  impartial  as  between 
the  plaintiif  and  defendant,  free  from  argumentative  statements; 
it  must  be  such  as  the  garnishee  coVild  rightly  be  held  to  in 
case  of  a  subsequent  suit  by  his  creditor  in  case  of  his  dis- 
charge from  the  garnishment,  and  such  as  would  protect  him 
from  re-payment  in  case  he  should  be  held  liable  to  the  garn- 
ishment. 

If  summoned  as  garnishee  in  more  than  one  suit  against  the 
defendant,  he  should  state  in  his  answer  to  the  second  and  sub- 
sequent garnishments  that  he  has  alread}^  answered  in  the  first, 
(and  where  there  are  more  than  two,  he  should  likewise  state 
all  antecedent  answers,)  and  also  true  response  make  to  all  inter- 
rogatories; but  he  is,  as  a  matter  of  course,  only  liable  to  pay 
once.  When  held  in  the  first,  he  is  entitled  to  discharge  in  the 
subsequent  ones. 

"When  the  answer  is  not  fully  responsive,  it  may  be  excepted 
to,  and  the  court  may  require  full  answer.  When  it  is  refused, 
the  garnishee  will  be  condemned  to  pay.     When  it  is  equivocal, 

»  Railroad  «.  Todd,   llHeisk.  549:  Barr  «.  Perry,  3  Gill,   313;  Bruce  v. 

Oldham  «.  Ledbetter,  1  How.  (Miss.)  Cook,  6  Gill  &   J.  345;  Stone  v.  Ma- 

43;  Ford  v.  Hurd,  4  Sm.  &  M.  (583;  grnder,  10  Id.  383;  Shivers  v.  Wilson, 

Ford  ®.  Woodward,  2  Id.  260;  Wash-  5  Harr.  &  J.    130;  Yerby   v.  Lack- 

bnrn  v  N  Y.  &c.  Co.41  Vl.  50;  Pope  land,  6  Id.  446;  Kimball  v.  McCom- 

«).  riibernia  Ins.  Co.  24  Ohio  St.  481 ;  ber,  50  Mich.  362. 
Clarke    -o.    Meixsell,  29    Md.     221; 


358  CIIAEGING    THE    GAENI8HEE. 

dif^lioncst  and  false,  lie  will  be  coiulemned  to  pay.  Ilis  own 
interest,  as  well  as  his  duty;  his  rehition  to  his  own  creditor  as 
well  as  his  attitude  towards  the  attaching  plaintiff,  require  that 
he  be  entirely  frank,  truthful  and  courteous. 

But  his  own  interest,  duty  and  relation  to  either  party  do 
not  require  him  to  answer  questions  not  pertinent,  to  expose 
matters  not  properly  drawn  into  the  litigation,  or  to  render 
himself  liable  to  pay  a  debt  twice. 

The  answer  is  not  confined  to  personal  knowledge,  nor  always 
to  the  rule  requiring  the  best  evidence.  It  may  contain  what 
is  known  only  from  the  information  of  others,  or  it  may  be 
based  upon  belief  rather  than  perfect  knowledge;*  it  may  be 
an  oral  statement  of  tacts  contained  in  a  deed  or  other  instru- 
ment under  seal,^  especially  if  elicited  by  the  interrogatories 
of  the  garnishor  or  by  questions  put  by  him  upon  further 
examination.  But  it  is  nsually  required  to  be  in  writing,  and 
to  be  signed.'  AVhat  is  stated  upon  oral  examination  is  a  part 
of  the  answer  and  must  be  taken  with  it.^  If  both  the  origi- 
nal response  and  the  subsequent  disclosure  do  not  show  that  the 
garnishee  has  property  of  the  defendant  or  is  a  debtor  of  his, 
there  can  be  no  order  in  favor  of  the  attaching  creditor. ^  The 
latter  cannot  deny  the  truth  of  the  answer,  when  he  does  not 
traverse,  and  cannot  recover  beyond  the  admitted  liability. ^ 

A  corporation  should  answer  as  garnishee  through  its  oihcial 
head,  by  the  officer  entitled  to  use  its  seal,  or  by  such  person  as 
the  body  is  accustomed  to  put  forward  to  represent  it  in  legal 
matters  provided  he  is  so  authorized  that  his  answers  will  bind 
the  corporation.  When  an  oath  is  re(^uisite,  it  must  be  made 
by  the  President,  Mayor  or  other  ofiicial  head,  or  by  the  duly 
authorized  person  who  is   capable  of  binding  the    corporation, 

1  Sexton  V.  Amos,   39   Mich.  695;  Wilson  «.  Wagur,  26  Mich.   452; 
Grossman  v.  Grossman,   21  Pick,  21 ;  Campau  v.  Traub,  27  Mich.  217. 
Boslwiclc«.  Bass,  99  Mass.  469;   Fay  ^  Ktme  ,,.    Cloiigh,  36   Mich.   436; 
V.  Sears,  111  Id.  154;  Shaw  «.  Bunli-  Hewitt    v.   Wagar   Lumber    Co.   38 
er,  2  Met.  376;  Laughran  v.  Kelly,  8  Mich.  701. 

Gush.    199.     See    Smith   ■».  Ghicago,  '^Newell   v.    Blair,    7    Mich.    103; 

&c.  R.  R.  Co.  60  Iowa,  312.  Thomas  i?.  Sprague,  12   Id.   120;    Pi- 

2  Allen  ».  Hazen,  26  Mich.  142.  quet  i\  Swan,   4  Mason,   4(>0;  Marka 
8  Taylor  v.  Kain,  8  Bax.  35.  v.  Reiuberg,  IG  La.  Ann.  348. 


THE    ANSWER. 


359 


whoever   be   may    be    under    tlie    charter    or    act  of    incorpo- 
ration, i 

Any  member  of  a  garnished  firm  may  answer  for  it.^  A 
general  agent  may  answer  for  a  foreign  corporation,  if  author- 
ized to  receive  service  of  process  in  its  behalf.  ^  The  otKcer 
answering  for  any  corporation  need  not  necessarily  be  the  one 
on  whom  the  writ  or  list  of  interrogatories  was  served.'* 

Doubtful  and  equivocal  answers,  whether  intended  to  be  so 
or  not,  must  generally  be  construed  against  the  garnishee.  The 
rule  works  hardship  in  many  instances,  but  what  else  is  the 
court  to  do?  The  garnishee  has  had  his  opportunity  of  deny- 
ing liability;  has  had  his  time  for  collecting  the  facts  and  for 
maturing  his  responses;  has  had  the  benefit  of  counsel  if  he 
chose  to  avail  himself  of  it,  and  if,  after  all,  he  has  innocently 
or  otherwise  rendered  himself  chargeable  by  ambiguous  state- 
ments, the  conrt  may  not  always  come  to  his  relief  and  deprive 
the  plaintiff  of  tlie  means  of  making  liis  money. 

Construed  against  himself,  the  answers  of  the  garnishee 
must  not  yet  be  strained  or  distorted  to  his  prejudice,  though 
somewhat  ambiguous;  they  should  receive  fair  dealing  at  the 
hands  of  the  court;  and  if  the  garnishee's  error  is  one  of  law, 
the  court  should  not  hold  him  accountable.  Discrepancies  may 
be  reconciled  by  a  comprehensive  view  of  the  answer  as  a  whole. 
No  technical  nicety  should  be  permitted  to  entrap  the  honest 
holder  of  defendant's  property  or  credit  into  such  position  as 
would  render  him  doubly  liable. 

If  the  person  questioned  answers  as  well  as  he  can,  tells  all 
he  knows,  and  the  state  of  facts  thus  disclosed  render  it  doubt- 
ful whether  he  is  liable,  he  ought  to  be  discharged.  Such 
doubt  is  not  attributable  to  any  evasiveness  or  wrong-dealing 
of  his,  and  he  should  be  protected. 

1  Bait.  &  Ohio  R.  R.   Co.  v.  Gall  a-  agent.     Steiner  v.  Central  R.   R.  Co. 

hue,  12  Gratt,   655;  Heads.  Merrill,  60  Ga.  552. 

34  Me.  586;  Oliver  v.  C.   &  A.  R.  R.  ^  Dupierris  v.  Hallisay,  27  La.  Ann. 

Co.  17  111.  587.     It  was  held  in  Geor-  132. 

gia  that  the  temporary  absence  of  ^Lorman  v.  Phojnix   Ins.   Co.   33 

the  president  of  a  domestic  corpora-  Mich.  65. 

tion  will  not  warrant  service  of  garn-  *  Duke  v.  R.  I.  Locomotive  Works, 

i"shmeut  on  a  subordinate   ofhcer  or  11  R.  I.  599. 


360  CHARGING    THE    GARNISHEE. 

Thoiip-h  the  garnishee  is  disinterested  in  the  result  of  t:ie 
suit  between  the  plaintiff  and  the  defendant,  he  may,  --o  pro- 
tect himself,  be  obliged  to  set  up  against  the  garnishment  such 
defenses  as  the  defendant  wonld  liave  the  right  to  urge  alKrma- 
tively  against  the  garnishee,  in  a  subsequent  action.  If  the 
defendant  has  already  satisfied  the  attaching  creditor's  claim, 
and  the  garnishee  knows  that  fact,  he  ought,  for  his  own  sake 
as  well  as  that  of  the  defendant,  to  urge  it  by  way  of  exception 
or  answer  to  the  garnishment.  If  a  garnishee  in  execution,  he 
certainly  may  and  should  plead  that  the  judgment  sought  to  be 
executed  has  already  been  satisfied,  if  such  is  the  fact.  If,  for 
any  reason,  the  creditor  no  longer  has  any  claim  against  his 
former  debtor,  the  garnishee  should  not,  by  the  payment  of 
what  he  owes,  or  the  delivery  of  what  he  holds,  put  the  defend- 
ant to  trouble  in  regaining  what  he  truly  owns. 

If  the  answer  is  a  denial  of  indebtedness  to  the  defendant, 
and  denial  of  possession  of  any  property  of  his,  the  plaintiff, 
acquiescing  therein,  has  no  attachment  suit;  and  if  he  pro- 
ceeds against  the  defendant,  the  action  is  only  personal.  ^ 

When,  by  reason  of  the  absence  of  the  defendant  or  other  cause, 
the  garnishee  is  obliged  to  defend  the  principal  suit  for  his  own 
future  protection,  he  may  urge  wdiathver  defense  upon  the 
merits  the  defendant  might  have  urged,  and  he  may  demur  or 
except  to  the  action,  especially  on  jurisdictional  grounds;  but 
"he  is  not  bound,  in  order  to  his  own  future  protection,  to  set  up 
merely  technical  obstructions  and  defenses.  When  he  answers 
and  is  examined  in  the  presence  of  the  defendant  he  is  not  only 
relieved  from  the  necessity  of  raising  technical  objections  but 
lie  is  precluded  from  making  such  points  as  that  the  sheriff's 
return  was  not  properly  endorsed  or  that  the  garnishment  service 
^vas  on  but  one  of  two  partners. ^  No  j-igid  rule  can 
be  laid  down,  however,  as  to  the  latitude  the  garnishee  may 
take  for  his  own  protection  in  defending  the  principal  suit  in 
the  absence  of  the  defendant.     Even  amendable  errors  may  be 

'  Littlejohn  v.  Lewis,  32  Ark.  423;  nte  in  Wisconsin  requiring  the  sum- 

LeingiU'dt  v.  Deitz,  30  Ark.  224.  mons  in  garnishment  to  be  served  on 

2  At  least  it  was  so  held  in   Busli-  tlie  principal  debtor.    See  3[o<)iiey  v. 

nell    V.  Allen,  48  Wis.  4G0— tlie  slat-  Union   Pac.  R.  II.  Co.  GO  Iowa,  ;!4(l 


THE    ANSWER. 


361 


of  sncli  a  character  that  exception  to  them  would  be  of  the 
highest  importance. 

If  the  defendant  has  confessed  judgment,  the  garnisliee  can- 
not defend  the  principal  suit,  being  fullv  protected  against  any 
future  attack  by  the  defendant,  and  perfectly  safe  in  paying 
into  court  under  order. ^  He  should  not  be  made  a  party  to  a 
feigned  issue.  2 

As  a  general  rule,  the  garnishee  is  not  bound  to  notice  mere 
irregularities  of  procedure  against  the  defendant;  nor  to  defend 
the  main  suit  when  the  defendant  is  in  court  or  under  summons; 
he  is  not  so  bound  when  the  court  is  vested  with  jurisdiction 
over  both,  nor  is  he  interested  in  doing  so  since  the  decree  of 
the  court  would  protect  him  from  a  future  suit  for  funds  paid 
over  or  property  delivered  under  judicial  order  to  him  as 
garnishee,  3 

The  answer  that  under  a  prior  garnishment  by  a  different 
plaintiff  indebtedness  to  him  had  been  admitted,  w^ould  be  of 
no  avail  to  discharge  the  garnishee,  even  thougli  the  plaintiff  in 
the  prior  garnishment  was  the  husband  of  the  attaching  credi- 
tor of  the  second   suit,  when  the  latter  is   a  sole   trader  or  is 


1  Bartlett  v.  Wilbur,  53  Md.  485. 

2  Fish  V.  Keeney,  91  Pa.  St.  138. 

*  Montgomery   Gas   Light     Co.   v. 
Merrick,  61  Ala.  534;    Flasb  v.  Paul, 
3S)  Ala.  141;  Gunn  v.  Howell,  35  Id. 
144;    Thompson  «.  Allen,  4  Stew.  & 
Port.  184;    Stebbius  v.  Fish,  1  Stew. 
180;    Parmer  v.   Ballard,  3   Id.  326; 
Smith  V.  Chapman,  6  Port.  365 ;  Sing- 
er V.  Townsend,  53  Wis.   126,   226 ; 
Houston    V.   Wolcott,     1   Iowa,   86; 
Strong    V.    Hollon,    39    Mich.    411; 
White  V.  Casey,  25  Tex.  552 ;    Doug- 
la-ss  «.  Neil,   37   Id.   528;    Pierce   v. 
Carlton,  12  111.  358 ;  Allen  v.  Watt,  79 
111.  284;  Cornwell  v.  Hungate,  1  Ind. 
156 ;  Scott  V.  Hawkin.s,  99  Mass.  550 
Knights «.  Paul,  11  Gray,  225;  Cham 
bers  V.   McKee,  1    Hill,  (S.  C  )    229 
Liudau   v.  Arnold,  4  Strobhart,  290 
Cannaday  v.  Detrick,  63    Ind.  485 
Foster    v.    Jones,     15     Mass.     185 


Chamberford  v.  Hall,  3  McCord,  345; 
Erwin  V.  Heath,  50  Miss.  795;  Ben- 
son V.  Hollaway,  59  Miss.  358;  Kel- 
logg V.  Freeman,  50  Miss.  157;  Sad- 
dler V.  Prairie  Lodge,  Id.  572;  Hef- 
fernan  v.  Grymes,  2  Leigh.  512; 
Atcheson  v.  Smith,  3  B.  Mon.  502; 
Shealey  v.  Toole,  56  Ga.  210;  White- 
head V.  Henderson,  4  Sm.  &  M.  704; 
Matheny  v.  Galloway,  12  Id.  475;  St. 
Louis  Per.  Ins.  Co.  v.  Cohen,  9  Mo. 
421 ;  Campbell  v.  Nesbitt,  7  Neb.  300 ; 
Hanna  v.  Lauring,  10  Martin,  (La.) 
563;  Brode  v.  Firemen's  Ins.  Co.  8 
Rob.  (La.)  244;  Lee  v.  Parmer,  18  La. 
405;  Wilson  ■».  Burney,  8  Neb.  39; 
Delby  v.  Tingley,  9  Neb.  412;  Lom- 
erson  v.  Hoffman,  4  Zab.  674;  Bank 
of  Northern  Liberties  v.  Munford,  3 
Grant,  232;  Gray  ■«.  Del.  «&  Hulson 
Canal  Co.  5  Abb.  N.  Cas.  131. 


362  CHAKGING    THE    GARNISHEE. 

legally  entitled  to  prosecute  the  action  in  her  own  behalf,  and 
when  the  debt  is  due  to  her.^ 

The  answers  are  to  be  deemed  true,  nnlcss  controverted  suc- 
cessfully by  the  plaintiff  u})on  traverse,  wliether  they  are  made 
to  interrogatories  tiled  in  the  main  attachment  suit,  or  in  an 
auxiliary  j^roceeding  or  scire  facias  suit.  In  either  case,  if  they 
are  such  as  to  M^arrant  the  discharge  of  the  garnishee,  he  can- 
not be  held  liable,  though  the  plaintiff  may  have  his  remedy 
afterwards  against  him  in  damages  if  they  are  subsequently 
found  to  have  been  false,  and  the  plaintiff  has  suffered  loss  in 
consequence.  2  The  answers  may  be  not  based  upon  the  personal 
knowledge  of  the  garnishee  but  may  be  from  information 
received  of  such  character  as  to  create  a  belief  of  the  facts. 
If  he  is  a  debtor  upon  a  note  not  negotiable  which  he  believes, 
upon  information,  to  have  been  assigned,  so  that  the  transferee 
has  an  equitable  right  to  collect  it  for  his  own  use,  though  in 
the  name  of  the  payee,  the  answer  so  stating  would  be  sufficient 
to  discharge  the  garnishee — the  maker  of  the  note.^  It  would 
be  manifestly  unjust  to  require  that  the  garnishee,  under  such 
circumstances,  should  state  the  transfer  as  a  fact  within  his  own 
personal  knowledge.  IS'ot  being  a  party  to  the  assignment,  it 
cannot  be  assumed  that  he  has  such  knowledge. 

He  knows  that  he  is  indebted  to  some  one,  and  he  might  be 
questioned  closely  with  reference  to  his  information  concerning 
the  transfer;  but  with  the  sworn  statement  unimpeached  that 
he  does  not  know  who  is  the  holder  of  the  note,  believes  it  is 
not  the  original  payee,  and  has  been  so  credibly  informed,  he 
cannot  be  charo-ed;  for  the  facts  which  he  states  from  such 
information  and  belief  are  to  be  considered  as  true,  like  those 
stated  from  personal  knowledge.'* 

'  Hirth  «.  Pfeifle,  42  Mich.  31.  ant  lias  appeared,  a  trustee's  answer 

2  Laughran   «.  Kelly,  8  Cusb.  199;  upon  information  and  belief,  must  be 

Carpenter  v.  Gay,  12  R.  I.  800.  taken    as     true   and   conclusive,   la 

'  Clinton  National  Bank  ■;;.  Bright,  Massachusetts.       Clinton     Bank    ». 

126     Mass.  535;    Fay    «.  Sears,  111  Bright,  126  Mass.  535. 

Mass.  154;  Kingman  v.  Perkins,  105  *  Fay  «.  Sears,  111  Mass.  154;  Bost- 

Mass.  Ill;    Macomber    v.   Doane,   2  wick -y.  Bass,  99  Mass.  469;    Sliaw  «. 

Allen,  541;  Taylor  «.  Collins,  5  Gray,  Bunker,  2  Met.  376;  Schafer  «.  Viz- 

50  (note) ;    Foster  -o.  Sinkler,  4  Mass.  ena,  30  Minn.  387. 

450.     Even   when  an  adverse  claim- 


THE    ANSWER.  303 

If  tlie  garnishee,  whether  in  reply  to  interrogatories  iiled  in 
the  main  attaciiinent  proceeding,  or  in  a  scire  facias  proceeding 
ancillary  thereto,  states  that  he  was  induced,  by  representations 
fraudulently  made  to  him  by  the  principal  defendant  to  enter 
into  a  contract,  but  that  such  contract  was  void  by  reason  of 
such  fraud  and  that  he,  the  garnishee  is  not  indebted  to  the 
defendant,  such  answer,  being  not  traversed  and  disproved, 
should  operate  the  discharge  of  the  garnishee.  ^  Should  the 
garnishee  admit  the  validity  of  a  contract  with  the  attach- 
ment defendant,  but  aver  the  violation  of  it  by  the  latter,  and 
answer  that  by  reason  of  such  violation,  nothing  is  due  to  the 
defendant,  the  answer  must  be  taken  as  true,  though  it  may 
admit  that  there  are  funds  in  the  garnishee's  hands.  Denying 
that  he  owes  any  debt  which  the  defendant  can  enforce,  the 
garnishee  is  not  chargeable.  "Where  the  defendant  was  a  con- 
tractor and  could  have  had  a  sum  due  him  on  the  contract  had 
he  performed  his  part,  but  who  abandoned  the  contract,  and 
the  other  party  was  obliged  to  pay  others  for  the  work  he  should 
have  done,  such  other  person,  summoned  as  garnishee,  is  not 
liable  after  answering;  with  a  statement  of  the  facts.^ 

Where  it  is  required  that  the  answers  must  be  taken  as  true 
and  the  attaching  creditor  is  inhibited  from  traversing  them, 
his  right  to  further  proof  is  conlined  to  such  additional  facts  as 
have  iiot  been  stated,  admitted  or  denied  by  the  answer.  ^  They 
must  be  facts  not  contradictory  of  the  answer,  where  such  rale 
prevails,  but  they  may  so  change  the  legal  import  of  it  as  to 
result  in  the  holding  of  the  garnishee  liable. 

Where  the  attaching  creditor  is  at  liberty  to  dispute  the 
answer,  and  contests  a  statement  from  information  and  belief 
that  the  debt,  which  the  garnishee  admits  owing,  has  been 
assigned;  or  tliat  projiertv  which  lie  holds  has  b°on  sold,  tlie 
supposed  assignee  or  vendee  may  be  made  a  party  in  Missouri.* 

1  Doyle  V.   Gray,   110    Mass.  206;  The  qualification  in  the   para<rraphg 

Fay  V.  Sears,  111  Mass.  154;  Bostwick  above,  "unless  traversed,"  is  inappli. 

t).  Bass,  99  Mass.  4(i9.  cable  of  course  where  contradiction 

'Doyle    V.    Gray,    110   Mass.   20G;  of  the  answer  is  not  allowed. 

Mason  v.  Ambler,  6  Allen,  124.  *  Held   in  ^Missouri,  under  statute, 

*  Bostwick  V.   Bass,  99   Mass.  469.  that   the  court,  under   such   circum- 


364  CHARGING    THE    GARNISHEE. 

In  a  disclosure  under  scire  facias^  tliougli  tlie  answer  of  the 
garnishee  is  to  be  taken  as  trae,  it  must  not  be  ambiguous  and 
irresponsive  to  the  question.  It  must  always  be  candid.  It" 
the  respondent  does  not  know  a  fact,  he  may  frankly  say  so, 
but  he  must  not  reply  in  a  doubtful  and  misleading  way. 
When  his  knowledge  is  positive,  he  must  answer  positively. 
All  doubtful,  unfair,  ambiguous  and  misleading  answers  should 
be  construed  against  him.i  If  he  knows  a  fact,  he  should  not 
qualify  his  statement  by  adding  that  he  states  it  from  informa- 
tion received;  he  should  not  base  his  answer  upon  belief  when 
he  has  pei'sonal  knowledge;  he  should  be  always  irn^iartial  he 
tween  the  jiarties  and  always  honest.  Tlie  iavoi'  to  which  lie  is 
entitled  as  a  dlsinteresttd  stakeholder  will  be  reversed  to  h.s 
prejudice  if  he  abuse  it. 

If  he  has  answered  a  question  categorically,  the  attachment- 
plaintiff  cannot  have  the  interrogatory  taken  for  confessed.  ^ 
The  plaintitf  should  not  take  a  rule  for  such  purpose  under  such 
circumstances;  but,  if  the  fact  sought  to  be  elicited  may  be 
reached  by  additional  interrogatories,  he  may  be  permitted  to 
propound  them  without  traversing  the  answers  to  the  first.  ^ 
The  garnishee  must  be  given  reasonable  notice  when  required 
to  answer  in  open  court.'* 

The  maker  of  an  overdue  negotiable  note  payable  on  demand, 
who  answers  as  garnishee  that  he  does  not  know  who  is  the 
holder,  nor  who  was  the  holder  at  the  date  of  the  summons,  but 
who  makes  no  statement  of  any  transfer  or  endorsement,  has 
been  held  liable,  though  the  result  would  have  been  otherwise 
had  the  note  been  payable  on  time  and  not  overdue.  An 
indorsee,  under  such  circumstances,  should  have  given  the  maker 
notice  of  the  indorsement;  and,  in  the  absence  of  such  notice, 
the  charging  of  the  garnishee  and  the  payment  by  him  under 
the  order  will  be  a  good  defense  against  any  subsequent  suit  by 

stances  is  directed  to  make  an  order  ^  Ullmeyer    v.    Ehrmann,    34    La. 

upon   tlie   supposed   veudee    or   as-  Ann.  33. 

Bignee   to   appear   and  make  claim.  ^  Ober  v.  Matthe^vs,  24  La.  Ann.  90. 

McKittrick   v.  Clemens,  53  Mo.  160.  *  Cocklield  «.  Tourres,  34  La.  Ann. 

'  Brainard  ■».  Shannon,  60  Me.  343.  168; 


THE    ANSWER,  y(>5 

the  indorser  against  the  inaker.^  lint  if  the  malccM-,  knowing 
of  the  existence  of  an  itidorsee,  slionld  pay  h'im  even  after 
having  been  snmmoned  as  garnishee,  and  slionld  so  state  in  his 
answer,  he  onght  to  be  discharged,  since  he  was  not,  nnder  such 
circumstances,  the  debtor  of  the  attachment  defendant  who  was 
the  original  payee. 2  It  might  be  a  matter  of  prudence  for  the 
maker,  under  such  circumstances,  to  withhokl  payment  to  the 
indorsee  till  after  his  examination,  but  certainly  prndcnoe  would 
not  require  that  he  should  subject  himself  to  protest. 

The  garnishee,  denying  indebtedness,  may  set  up  wliatever 
grounds  he  would  have  been  entitled  to  plead,  had  the  action 
been  directly  brought  against  him  by  the  person  sued  in  the 
attacliment  proceedings.  ^  They  must  be  grounds  which,  at  the 
time  of  the  service  of  the  garnishment,  he  could  have  set  up 
against  such  defendant.  If  then  indebted  to  him  upon  contract, 
the  garnishee  and  defendant  could  not  thereafter  rescind  the 
contract  so  as  to  cut  the  attaching  creditor  off  from  the  benefit 
of  the  garnishment  and  enable  the  garnishee  to  plead  such 
rescinding  of  contract  by  way  of  defense. ^ 

The  garnishee  may  plead  prescription  or  anything  that  would 
be  a  cood  defense  ao-ainst  the  alleged  indebtedness  were  the  suit 
directly  brought  by  his  own  creditor.  He  may  plead  want 
of  consideration.  He  may  plead  set  off;  but  if  such  plea  should 
involve  the  liquidation  of  accounts  between  him  and  the  defend- 
ant, it  would  seem  that  the  investigation  ought  not  be  had  in 
the  attachment  proceeding,  and  that  the  garnishment  should  not 
be  sustained.  Proof  of  set-off,  in  such  proceeding,  would  not 
be  adduced  contradictorily  with  the  defendant;  and  he  would 
not  be  bound  by  the  statements  of  the  garnishee  nor  by  the 
judicial  finding  thereon,  should  he  afterwards  sue  for  settlement. 
Of  course  the  defendant  is  not  put  to  the  worse  by  any  acknowl- 
edgement of  indebtedness  to  him  by  the  garnishee,  nor  can  he 
be   by  any  denial   thereof;    but  the  inv^estigation  of  accounts, 

>  Scott  V.  Hawkins,  99   Mass.  550,  ^  Sheedy  v.  Second  National  Bank, 

(under  statute.)    Knights  v.  Paul,  11  62  Mo.  17. 

Gray  225.  *  Fowler  v.  Williamson,  52  Ala.  16, 

*  Kauffman  v.  Jacobs,  49  Iowa,  432. 


366  CHARGING    THE    GAKNISIIEE. 

with  one  of  the  parties  thereto  left  out  of  the  iriqiiirv,  seems 
not  advisable.  However,  if  the  garnishee  answers  that  he  owes 
the  defendant  a  stated  sum  on  account,  the  attaching  creditor 
may  hold  him  to  it.  If,  on  the  other  hand,  he  should  honestly 
state  that  he  believes  that  he  is  indebted  to  the  defendant  on 
account  but  that  he  cannot  approximate  the  amount  without  a 
settlement,  he  ought  to  be  discharged. 

Suppose  the  garnishee  should  answer  that  he  is  indebted  now 
to  the  defendant  but  that  he  holds  the  note  of  the  defendant  to 
an  amount  equal  to  the  debt,  though  the  note  is  not  yet  due; 
ought  he  be  ordered  to  pay  into  court  for  the  benefit  of  the 
attaching  creditor?!  He  ought  not  to  be  put  into  a  worse  posi- 
tion by  the  snmmons  than  he  occupied  before  its  service;  he 
ought  not  be  obliged  thus  to  give  a  fellow  creditor  a  preference 
over  himself,  it  may  plausibly  be  argued.  But  the  attaching 
creditor's  claim,  if  already  due  and  owing,  is  payable  now  while 
the  note  held  by  the  garnishee  is  not.  If  the  note  has  some 
years  yet  to  run,  why  may  not  the  creditor  make  the  garnishee 
pay  now  what  the  defendant  is  competent  to  make  him  pay  now 
in  the  absence  of  the  attachment?  In  case  the  creditor's  claim 
is  not  yet  due,  it  would  seem  that  he  ought  to  be  given  no 
advantage  over  the  garnishee;  nor  ought  he  have  any,  if  the 
note  of  the  defendant  to  the  garnishee  is  very  nearly  due;  nor 
when  the  order  to  pay  into  court  would  work  great  hardship; 
but,  unless  such  or  like  circumstances  are  made  to  appear,  there 
seems  to  be  no  protection  for  the  garnishee  in  the  absence  of 
statute  exemption  in  such  case. 

Contingent  liabilities  are  not  chargeable,^  but  the  liability 
must  be  certain  at  tlie  time  of  the  service. ^  It  must  affirma- 
tively   appear,  from  the    answer  of  the    garnishee,    (and  other 


'  In  Vermont,  under   statute,  held  Spears  v.   Chapman,  43   Mich.  541; 

that  he  could  retain  enough  to  protect  Martz  v.  D.  &  F.  M.Ins.  Co.  28  Mich, 

himself.      Lynde  v.  Watson,  52   Vt.  201;  Thorp  ^.  Preston,  42  Mich.  511 ; 

648.  Nashville    v.    Potomac   Ins.  Co.  58 

2  Cairo  &c.  R.  R  Co.  v.  Killenberg,  Tenn.  296. 

82  111.  295;  Williams  ?).  Railroad  Co.  ^  j^jgijop    ^    Young,    17  Wis.    46; 

36  Me.  210;  Wilder  v.  Shea,  13  Bush.  Wobber  v.  Doran,  70  Me.  140. 
128;  Thorp  v.  Elliott,  42  Mich.  511; 


THE    ANSWKR. 


367 


proofs  where  allowable,)  that  he  is  liable,  or  he  should  be  dis- 
ci) arged.i 

One  who  has  paid  as  garnishee  without  disclosing  the  fact, 
within  his  knowledge,  that  the  debt  had  been  assigned,  may  be 
made  to  pay  agaiu  to  the  assignee. ^ 

The  garnishee  may  set  off  the  amount  of  a  claim  against  the 
deiendant,  not  neg  )tiable,  which  he  has  assigned  before  being 
summoned— the  assignee  agreeing  to  hold  the  claim  for  the 
beneiit  of  others.  ^  If  he  could  plead  such  claim  as  a  set-off 
in  a  suit  by  the  attaching  defendant,  he  can  plead  it  as  garni- 
shee; and  he  is  chargeable  for  the  balance  of  debt  only.* 

Joint  contractors,  summoned  as  garnishees,  may  set  .off  in 
the  attachment  proceedings,  their  separate  claims  against  the 
defendant.^ 

Offset  pleaded  in  answer  against  several  plaintiffs  will  not  be 
allowed  after  the  garnishee,  Avithout  amending  his  answer,  has 
admitted  on  trial  that  the  set-oli"  is  only  against  some  of  the 
plaintiffs.*  If  there  is  admission  of  indebtedness  in  the  ans- 
vcer  qualified  by  the  statement  that  the  defendant  owes  the 
garnishee  a  greater  sum,  the  attaching  creditor,  opposing  the 
allowance  of  the  set-off  on  the  ground  that  it  is  not  yet  due, 
has  the  burden  of  proof  The  garnishee  cannot  successfully 
plead  a  prescribed  claim  as  offset. ^ 

»  Richards -y.  StepUeuson,  99  Mass.  Marsh  -».  Davis,  24  Vt.  3G3 ;  Seward 
311;  Laugbran  v.  Kelly,  8  Cush.  199;  ■«.  neflin,20  Vt.  144;  Prescott ».  Hull, 
Porter  1).  Stevens,  9  Cnsh.  530;  Clin-  17  Johns.  284;  Greentree  ■«.  Rosen- 
ton  Nat.  Bunk  «.  Bright,  126  Mass.  stock,  61  N.  Y.  583;  Bunker  «.  Gil- 
535 ;  Regan  v.  Pac  R.  R.  Co.  21  Mo.  more,  40  Me.  88.  See  Landry  v. 
34;  Cairo  &c.  R.  R.  Co. -a.  Killenberg,  Chayret,  58  N.  H.  89;  Chesley  v. 
82  111.275;  Williams  v.  House!,  2  Coombs,  Id.  142. 
Iowa,  154;  Smith  v.  Clarke,  9  Iowa,  ^  Nutter  v.  Framingham  &  Lowell 
241;  Farwell  v.  Howard,  26  Iowa,  R.  R.  Co.  &  Trustee,  132  Mass.  427. 
381;  DriscoU  i).  Hoyt,  11  Gray,  404;  *  Hathaway  v.  Russell,  16  Mass. 
Fay  V.  Sears,  111  Mass.  154;  Lorman  473;  Allen  v.  Hall,  5  Met.  263;  Green 
V.  Phoenix  Ins.  Co.  33  Mich  65;  Hack-  v.  Nelson,  12  Met.  567. 
ley  V.  Kanitz,  39  Mich.  398 ;  Sexton  ^  Hathaway  v.  Russell,  16  Mass. 
t>.  Amos,  Id  695.  473;  INIanuf.  Bank  v.  Osgood,  12  Me. 

2  Wardle  v.  Briggs,  131  Mass.  518;  117;  Brown  v.  Warren,  43  N.  H.  430. 

Whipple  V.  Bobbins,  97  Mass.   107;  «  Story  «.  Kemp,  55  Ga.  276. 

Butler    V.   Mullen,    100    Mass.    453;  ^  Cuney».  National  Bank  of  Augus- 

Randall     v.     AVay,    111    Mass.   506;  ta,  53  Ga.  28. 

W.lkensou    v.    Hull,    6    Gray,    5GS;  nVadleigh   i).  Jordan,  74   Me.  483. 


36S  CHARGING    THE    GARNISHEE. 

The  garnishee  cannot  snccessfiillj  plead  that  the  creditor 
might  have  levied  upon  property  in  his  hands,  instead  of  a 
credit  due  the  defendant,  lie  must,  for  his  own  future  protec- 
tion, defend  against  any  illegal  means  of  making  him  pay  over 
what  belongs  to  another.^  He  is  entitled  to  damages  against 
both  the  plaintiff  and  the  bondsmen,  for  actual  loss  caused  by 
the  groundless  issuance  of  the  garnishment,  and  to  exemplary 
damages  if  the  garnishment  is  both  groundless  and  vexatious. 2 

If,  in  defending,  the  garnishee  should  claim  to  be  the  owner 
of  the  thing  sought  to  be  subjected  to  the  process  of  attach- 
ment, the  question  is  whether  his  right  is  superior  to  that  of 
the  attaching  creditor.  If  he  is  really  the  owner,  and  so  ans- 
wers, and  that  fact  is  established,  the  creditor  of  the  defendant 
could  not  maintain  the  garnishment.  But  the  validity  of  the 
garnishee's  title  to  property  in  his  custody  when  he  claims  to  be 
the  owner,  cannot  be  adjudicated  on  a  rule  traversing  his  ans- 
wer.    Such  "an  issue  can  only  be  passed  upon  in  a  direct  suit. 3 

If  the  principal  defendant  is  not  in  court,  the  garnishee  ma}'', 
in  some  respects,  plead  for  him;  for  instance,  he  may  plead 
exemjDtion  in  favor  of  the  debtor.  ^ 

Sec.  6.    Amended  Answer. 

An  answer  to  interrogatories  may  be  amended  by  the 
garnishee,  upon  sufficient  cause  shown.  Sufficient  cause  is  the 
subsequent  discovery  of  a  mistake  made  in  the  first  response, 
or  the  knowledge  of  some  new  and  important  fact,  or  even 
newly  acquired  information  concerning  his  rights  under  the 
law  touching  matters  about  which  his  answers  are  voluntary 
and  will  charge  him  if  given  but  which  he  is  not  legally  obliged 
to  give.  What  would  subject  him  to  two  payments  may  be 
recalled  by  an  amended  answer.  What  would  bind  him  and  yet 
w^as  withheld  in  his  first  answer,  should  be  given  by  way  of 
amended  answer,  for  conscience'  sake. 

When  the  right  of  amending  is  drawn  into  question,  it  should 

»  Pounds  V.  Hamner,  57  Ala.  342.  I,  249. 

2  Hays  V.  Anderson,  57  Ala,  374.  *  Chicago,  Rock   Island    &c.  R.  R. 

*  Ivens  V.  Ivens,  30   La.  Ann.  Part      Co.  v.  Mason,  11  111.  App.  525. 


AMENDED    ANSWER.  309 

1)6  remembered  that  tlie  garnishee's  answer  is  to  be  more  liber- 
ally treated  than  the  pleadings  of  the  parties  to  the  main  suit. 
He  is  no  party  to  that,  thongh  a  sort  of  side  contest  may  arise 
between  him  and  the  attaching  creditor;  certainly  he  is  no 
party  in  the  fight  between  the  plaintiff  and  the  defendant;  he 
is  no  intervenor,  nor  vvai-rantor  nor  third  party  of  any  sort. 
He  cares  nothing,  or  should  care  nothing,  or  is  legally 
supposed  to  care  nothing  about  the  issue  of  the  suit.  If  he 
has  not  told  all,  or  has  told  too  much,  why  should  he  not  be 
allowed  to  correct  his  statement  as  a  witness  is  so  allowed? 
No  court  should  deny  him  the  right,  unless  lie  has  forfeited 
confidence  by  cunning,  trickery,  prevarication  and  question- 
dodging.  Suppose  a  witness  to  apply  to  the  court  for  leave  to 
correct  erroneous  statements  in  his  testimony:  would  any 
tribunal,  intent  only  upon  subserving  the  ends  of  justice,  refuse 
the  request,  if  made  within  due  time  during  the  process  of  the 
investigation,  if  the  witness  has  proved  honest  in  the  first 
instance  but  has  subsequently  discovered  an  error?  Even  upon 
the  application  of  one  of  the  parties  to  the  cause,  the  court 
would  be  likely  to  allow  the  witness  to  be  recalled  on  such  a 
showing:  how  much  more  readily  should  the  application  of  the 
disinterested  witness  himself  be  successful?  The  analogy  of 
position  between  the  witness  and  the  garnishee  is  such  that  the 
same  reasons  apply  in  the  one  case  as  in  the  other  for  allowing 
answers  to  be  amended,  with  the  additional  one  in  favor  of  the 
latter  that  the  court  should  protect  him  from  erroneously  and 
innocently  causing  loss  and  injury  to  himself,  where  the  first 
answers  tend  to  wrong  him  in  that  way.^ 

Courts  are  said  to  have  it  in  their  discretion  to  allow  amend- 
ments or  not;  but  it  is  a  discretion  under  judicial  duty — a  dis- 
cretion similar  to  that  Avhich  he  has  in  deciding  a  cause  for  the 
one  party  or  for  the  other.  .If  the  garnishee  has  fully  done 
his  duty,  and  yet  has  made  an  erroneous  statement  which  he 
prays  leave  to  correct,  it  is  the  duty  of  the  court  to  grant  the 
prayer. 

In  the  exercise  of  discretion,  the  court  may  either  grant  or 

>  Klauberw.  Wiiglit,  .'2  Wis.  303. 
24 


370  CHAKGIKG    THE    GARNISHEE. 

refuse  an  application  to  amend,  after  a  rule  lias  been  talcen  to 
have  the  answered  interrogatories  taken  as  confessed.^  But  if 
sometliing  has  happened  subsequently  to  the  original  answer 
which  renders  it  a  matter  of  justice  that  amendment  be  allowed, 
the  court  should  not  refuse  it.  For  instance,  if  the  garnishee 
has  answered  that  he  owes  on  negotiable  notes,  and  afterwards 
learns  that  they  had  been  assigned  before  he  was  garnished,  he 
cannot  be  refused  the  right  to  amend,  if  otlierwise  lie  would  be 
hable  to  pay  twice.^  Or,  if  he  has  acknowledged  itidobtedness 
to  the  defendant,  and  afterwards  finds  that  the  debt  had  been  as- 
signed before  the  service  of  the  writ  upon  him,  thus  defeating 
the  foreign  attachment,  he  should  be  allowed  to  amend  as  of 
right." 

A  second  application  to  amend  is  entitled  to  less  liberal  con- 
sideration than  the  iirst,  thongh  it  ought  to  be  granted  upon 
sufficient  cause  being  shown.  It  is  impossible  to  lix  a  limit 
till  reasons  for  amending  have  been  exhausted,  except  that  the 
reasons  should  be  new  ones,  and  not  readily  knowable  before 
the  previous  reply  or  replies.  Common  sense  will  dictate  the 
proDer  terminus  in  every  case. 

The  effect  to  be  given  to  the  answer,  is  an  important  topic. 
Here  is  a  disinterested  third  person,  called  into  court  against 
his  will,  interrogated  by  the  plaintiff,  who  has  made  responsive 
answers  to  all  such  legal  questions  as  the  plaintiff  chose  to 
expound:  should  his  statement  not  be  conclusive?  AVere  he  the 
plaintiff's  witness,  the  plaintiff  could  not  contradict  him. 
Whether  his  answers  be  affirmative  or  negative,  the  defendant 
has  no  interest,  nor  right,  nor  business  to  contradict  him. 
Should    not  his  statement  be  conclusive    upon    both    parties? 

No.  He  is  not  a  witness.  The  plaintiff  had  no  option  to 
select  whom  he  might  choose  to  prove  the  fact  that  the  defend- 
ant had  money  or  goods  or  credits  subject  to  examination.  The 
answers  can  have  no  bearing  upon  the  questions  at  issue  in  an 
attachment  case.     They  have  no  bearing  on  any  litigated  ques- 

*  Such   application  was  denied    as  Forget,  27  La.  Ann.  oSt. 

too   lale  after  the  garnishee  had  ex-  ^  Lewis  v.  Dunlop,  57  ]^Iiss.  130. 

cepted  to  a  rule  to  have  his  first  aus-  *  Sweets.  Read,  12  R.  I.  121. 
wer  taken  pro  confesso.     Heunen  v. 


AMENDED    ANSWER.  371 

tion  between  plaintiff  and  defendant  in  any  case  or  in  any  stnge 
of  a  case.  Tiie  garnishee  is  interrogated  because  he  is  supposed 
to  owe  the  defendant  or  hold  property  of  the  defendant — not 
becanse  he  alone  knows  the  fact.  He  is  summoned  that  he  may 
answer  and  be  held  to  pay  or  to  deliver,  under  order  of  court- 
nut  merely  to  give  evidence;  and  the  facts  which  he  divnlges 
are  not  drawn  out  by  the  plaintiff  contradictorily  with  the 
defendant.  While  the  garnishee,  from  his  own  standjDoint,  may 
ask  to  amend  erroneous  statements  on  the  same  grounds  that  a 
witness  might  so  ask,  yet,  from  the  standpoint  of  the  plaintiff, 
lie  is  not  to  be  deemed  a  mere  witness.  His  statements  may 
therefore  be  traversed  by  the  plaintiff  without  infringing  the 
rule  that  inhibits  him  from  contradictingr  his  own  witness.  The 
answers  are  not  conclusive  upon  him,  unless  he  lets  them  stand 
unimpeached  and  uncontradicted.  But  he  may  attack  them, 
refute  them  by  evidence  alkaide,  contradict  them,  explain  them, 
eke  them  out,  pruve  the  lial)ility  of  the  garnishee  in  spite  of 
liis  negative  replies  and  hold  him  responsible  for  such  judgment 
as  he  may  recover  in  cases  where  the  proof  shows  that  the 
garnishee  has  goods  or  credits  in  hand  of  snllicient  amount. 

But  there  are  just  bounds  to  collateral  investigation  of  the 
facts.  Courts  will  not  let  a  new  law  suit  be  injected  into  the 
one  at  bar.  Evidence  aliunde  will  be  confined  to  the  question 
of  the  garnishee's  holding  credits  or  property  reachable  by 
execution  for  the  defendant's  debt  without  any  impediments 
pleadable  by  the  garnishee  in  defense  should  he  be  sued  for  such 
credits  or  property  by  the  defendant  in  the  attachment  suit. 
And  further  conlined  to  this  question  as  laid  in  the  interroga- 
tories.    Beyond  such  bounds,  the  traverse  cannot  go. 

During  a  contest  between  the  attaching  creditor  and  another 
person  for  funds  in  the  hands  of  the  garnishee,  they  should  not 
be  paid  to  either  contestant  till  the  dispute  has  been  decided,  i 
The  garnishee  cannot  pay  them  to  an  assignee  of  the  defendant, 
at  a  time  when  proceedings  are  pending  by  the  attaching  credi- 
tor against  such  assignee,  for  the  judicial  settlement  of  such 
contest,  if  the  garnishee  has  knowledge  of  such  proceedings.  A 

•Sailer  v.  Ins.  Co.  of  N.    America,  G2  Ala.  231. 


JiZ  CHARGING    THE    GARNISHKE. 

pnyment  to  the  transferee  of  the  defendaiit,  nnder  sncli  circnm- 
stances,  would  be  at  the  peril  of  the  garnishee, ^  If  he  is  not 
informed  of  the  transfer  till  after  he  has  been  summoned,  but 
before  he  has  answered,  he  should  disclose  his  knowledge  of  it 
in  his  answer;^  but  if,  before  being  informed,  he  has  acknowl- 
edged indebtedness  to  the  defendant  in  his  answer,  made  in 
good  faith,  he  ought  not  be  imperilled.  He  should  Ije  allowed 
to  amend  his  answer,  should  he  obtain  information  of  the  trans- 
fer before  being  ordered  to  pay  under  the  garnishment.  3  If, 
under  such  circumstances,  he  does  not  amend  after  he  has 
knowledge,  he  will  not  relieve  himself  from  liability  to  the 
assignee.* 

Sec.  7.    Traverse  of  the  Answer. 

The  answer  is  final  when  not  traversed  and  disproved. ^ 
Denial  of  indebtedness  to  the  defendant  and  of  possessing 
property  of  his,  will  result  in  the  discharge  of  the  garnishee 
when  not  controverted;  but  the  defendant  cannot  ask  the  dis- 
charge upon  such  denial,  for  the  plaintiff  may  desire  to 
traverse  the  answer.  <* 

The  rule  is  that  it  must  clearly  appear  by  the  untraversed 
answer  that  the  garnishee  is  chargeable,  or  he  will  be  dis- 
charcred.''  And  the  discharo-e  is  final. ^  The  rule  has  been  held 
to  include  statements  of  facts  made  on  the  garnishee's  belief 

1  Id.  Larabee  v.  Knight,  69  Me.  «  Railroad  v.  Peoples,  31  Ohio  St. 
320.  537 ;  Myers  v.  Smith,  29  Ohio  St.  120. 

2  Tabor  v.  Van  Vranen,  39  Mich.  Tliis  case  makes  the  exception  how- 
793.  ever  that,  the  garnishee  may  be  dis- 

2 Tracy  v.  McGarty,   12   R.  I.  168.  charged  on  application  of  a   defend- 

A  railroad  company  was   held  liable  ant  who  "has  given  an  undertaking 

on  account  of  admitted  indebtedness  for  the    performance    of  any    judg- 

to  a  judgment  debtor,   though   the  ment   which    may   recover    against 

corporation  was  chartered  in  another  him." 

State,  and  denied  the  jurisdiction  of  '  Cairo  &c.  R.  R.  Co.  •?).  Killenberg, 

the  court  in  which  itwasgarnisheed.  82  111.  295;  Wilder  «.  Shea,  13  Bush, 

Mahanny  «.    Kephart,    15   W.    Va.  128;  Nashville  v.   Potomac  Ins.  Co. 

609.  58  Tenn.  296. 

*  Lewis  17.  Dunlop,  57  Miss.  130.  ^Turpin  v.  Coates,    12   Neb.  321; 

5  Flash -p.  Morris,  27  La.  Ann.   93;  Wilder  v.  Shea,  13  Bush,  128. 
Wilder  v.  Shea,  13  Bush,  128. 


TKAVERSE  OF  THE  AN8WEB.  373 

and  on  information  which  he  has  received  from  others,  as  well 
as  those  based  on  his  own  personal  knowledge.  ^ 

A  plaintiff  may  have  an  action  against  a  garnishee  who  has 
wronged  him  by  an  insufficient  answer,^  but  the  proper  course 
is  to  traverse  the  answer  in  the  proceeding  in  which  it  was 
rendered.  In  Louisiana,  the  traverse  must  be  within  a  limited 
time  iixed  by  statute,  or  the  right  will  be  prescribed.* 

A  demurrer  may  be  properly  pleaded  to  the  answer  of  the 
garnishee  that  the  defendant  has  failed  and  his  effects  have 
gone  into  the  hands  of  a  receiver.*  It  does  not  matter  to  the 
garnishee  whether  his  indebtedness  is  payable  to  his  creditor  or 
to  a  receiver.  There  may  be  circumstances,  however,  under 
which  it  would  be  his  duty  to  disclose  the  fact  that  a  receiver 
had  been  appointed.  If  he  has  had  legal  notice  of  such  an 
appointment  so  as  to  preclude  his  payment  to  his  creditor,  and 
the  proceedings  of  which  he  has  notice  are  pending  in  a  differ- 
ent county,  aud  those  in  which  he  is  garnished  are  of  such 
character  that  he  may  be  speedily  ordered  to  pay  into  court,  (as 
in  case  of  confession  of  judgment  by  the  principal  defendant,) 
he  might  be  in  danger  of  being  made  to  pay  twice,  if,  after 
notice  of  the  appointment  of  the  receiver,  he  should  fail  to  dis- 
close the  fact,  and  acknowledge  indebtedness  in  his  answer 
without  explanation.  Under  such  circumstances,  such  disclos- 
ure oirght  not  be  subject  to  exception. 

However  insufficient  the  answer,  it  cannot  be  stricken  from 
the  record  on  motion.  The  proper  way  to  meet  it  is  by  excep- 
tion or  traverse.  5 

Wherever  traverse  of  the  garnishee's  answer  is  not  permitted, 
there  is  danger  of  great  difficulties  and  impediments  to  justice. 

«  Sexton  V.  Amos,   39  Mich.  G95;  Cush.  199. 

Fay  V.  Sears,   111   Mass.  154;  Bost-  *  Garcia  &  Leon  v.  La.  ]\Iut.  Ins. 

wick  V.  Bass,   99  Id.   469;  Grossman  Co.  31  La.  Ann.  516. 

«.  Grossman,   21   Pick.   21;  Siiaw  v.  *  Baitlett  ».  Wilbur,  53  Md.  485. 

Bunker,  2  Met.  (Mass.)  376;  Clinton  ^  Bni-ms    v.    Moore,    63   Ga.   405; 

National  Bank  ».  Bright,   126   Mass.  Security  Loan  Association  i'.  "Weems, 

535.  69  Ala.  584,   relative  to   insufficient 

2  Exchange   Bank    v.    Gulick,    24  answer. 
Kan.    359;     Laughran    v.    Kelly,   8 


liU 


CHAKGING    THE    GAKNISIIEE. 


Tlie  answer  may  be  one  easily  exposible  by  other  testimony, 
yet  of  such  facial  cliaracter  that  the  court  would  not  be  justiti- 
able  in  rejecting  it  as  false  when  weigliiiii!,-  it  with  reference  to 
its  credibility.  It  might  be  noiiconuuittnl,  so  as  to  make  out 
no  case  for  the  plaintiff;  and  then  he  would  be  without  recourse, 
but  for  the  right  to  require  responsive  answers  when  the  ones 
oftered  are  evasive. *  If  the  disclosure  is  not  satisfactory,  the 
only  authorized  course,  where  traverse  is  not  permitted,  is  to 
obtain  a  further  disclosure. ^ 

If  the  plaintiff  neither  traverses  the  answer  nor  files  addi- 
tional interrogatories,  it  must  stand  as  true,  as  far  as  it  is 
responsive;  and  sometimes  when  it  goes  farther  and  affirms  new 
matter.  Indeed,  new  matter  by  way  of  exoneration  will  gen- 
erally be  held  as  true  nnless  the  plaintiff  controvert  it.^  He 
has,  of  course,  much  latitude  in  the  traverse  of  such  new  mat- 
ter. In  such  case,  the  07ius  is  wholly  on  the  plaintiff  to  estab- 
lish the  indebtedness  of  the  garnishee,  to  the  defendant.^ 

Whenever  the  attaching  creditor  may  legally  traverse  the 
answer  of  the  garnishee,  he  may,  as  a  matter  of  course,  intro- 
duce evidence  aliunde.^      Such  evidence  must   be  confined  to 


iln  Ilackley  v.  Kauitz,  39  Mich. 
39-*,  the  court  said:  "  Tlie  disclns- 
lu-e  is  so  ambiguous  and  uncertain 
that  it  would  not  authorize  the  just- 
ice to  render  judgment  against  Kau- 
itz as  gainisliee.  *  *  The  dis- 
closure is  the  evidence,  and  all  the 
evidence  that  can  be  introduced  in 
the  case,  and  if  that  does  not  prima 
facie  show  a  liability  upon  which 
judgment  could  be  rendered,  the 
justice  has  no  authority  to  render  a 
judgment  against  the  garnishee,  etc. 
This  has  been  repeatedly  held  in 
this  State,  and  must  be  considered 
as  settled."  Newell  v.  Blair,  7  Mich. 
103;  Thomas  v.  Sprague,  13  Id.  120; 
"Watson  V.  Kane,  31  Id.  63.  But,  un- 
der Mich.  Stat.,  the  garni-hee  may 
make  an  issue,  and  the  subject  and 
tacts  of  his  disclosul-e  may   be  can- 


vassed, met  by  counter  testimony, 
etc.  Fearey  v.  Cummiugs,  41  Mich. 
370. 

2  The  People  ex  rel,  Townsend  & 
Alexander  v.  Cass  Circuit  Judge,  39 
Mich.  407. 

3  IJolton  V.  South  P;;c.  R.  R.  Co.  50 
M.O.  151 ;  Thompson  v.  Fisehesser, 
45  Ga.  309. 

*  In  Rhode  Island,  a  creditor  can- 
not supplement  a  garnishee's  afhda- 
vit  by  extrinsic  testimony  and  re- 
cover partly  on  the  one  and  partly  on 
the  other.  Sweet  ».  Read,  12  R.  I. 
121. 

^  Leighton  i\  Hea^erty,  21  IMinn. 
43;  Bates  v.  Forsyth,  64  Ga.  233; 
Baxter  v.  Mo.  &c.  R.  R.  Co.  67  Barb. 
283;  McNeal  v.  Roach,  49  Miss.  436; 
Rutter  V.  Boyd,  3  Abb.  New.  Cas. 
60 ;  East  Line  &c.   R.    R.  Co.  v.  Ter- 


TKAVERSE  OF  THE  ANSWEE.  375 

tlio  real  is3iie.  The  attaching  creditor  cannot  prove  against  tlie 
garnishee  who  is  a  grantee,  a  verbal  promise,  (exacted  by  tiie 
defendant  as  grantor  as  the  condition  of  the  conveyance,)  to 
pay  such  creditor's  claim  in  full,  when  the  instrument  of  con- 
veyance recites,  as  consideration,  the  grantee's  promise  to  pay 
all  the  creditors  of  the  grantor  in  equal  proportion.* 

To  successfully  reach  a  fund  in  the  hands  of  a  garnishee,  the 
attaching  creditor  must  have  the  admission  in  the  answer  that 
it  belongs  to  the  defendant :*  or  if,  in  the  absence  of  such 
admission,  he  may  oiler  proof  aliunde,  the  burden  is  on  him  to 
make  out  his  case.' 

The  burden  of  proof  is  upon  the  attaching  creditor  when  he 
seeks  to  establish,  by  evidence,  anj^  state  of  facts  different  from 
that  disclosed  by  the  garnishee,  for  the  purpose  of  sustaining 
the  garnishment;*  but  it  may  be  readily  shifted.  The  question 
of  the  burden  of  proof  depends  upon  the  saine  principles  as  in 
an  ordinarj'-  contest,  except  that  the  garnishee's  position  should 
be  liberally  treated  because  of  his  absence  of  interest.^  The 
general  rule  is  that  the  sworn  answer  of  the  garnishee  shall 
stand  as  true  and  conclusive  till  successfully  controverted;  and, 
when  by  statutory  law  it  is  provided  that  it  shall  so  stiind,  still 

ry,  50  Tex.  129;  Farrar  v.   Bates,  55  *  Caldwell  v.  Coates,  78  Pa.  St  312; 

Tex.  198;  Hewitt  o.  Wagar  Lumber  East  Line  &c.  R.  11.   Co.  v.  Terry,  50 

Co.  38  Mich.  701.  Tex.  129;  Bates  v.  Forsyth,   64  Ga. 

'  Murphy  ».  Caldwell,  50  Ala.  461.  232;  Sheldon  «.  Hinlon,   6   111.  App. 

2  Farwell  v.  Howard,  26  Iowa,  381 ;  216. 

Morse    v.    Marshall,     23     Id.    292;  »  East  Line  &c.  R.  R  Co.  ?;.  Terry, 

Church    c.    Simpson,    25     Id.    410;  50  Tex.  129;  Porter    v.    Stevens,   9 

Pierce  v.  Carlton,  12  111.  358;  Chase  Cush.  530;  Lane  v.  Felt,  7  Gray,  491; 

«.  North,  4  Minn,  381;  Cairo  &c.  R.  Laschear  «.  AVhite,   88  111.  43;  Dris- 

R.  Co.  V.    Killeuberg,    82   111.    295;  coll  «.  Hoyt,  11  Gray,  404;    Richards 

Banning  v.    Sibley,    3    Minn.    389;  «.  Stephenson,  99  Mass.  311;  Sheldon 

Pioneer  Printing    Co.   v.   Sanborn,  3  u.  Hinton,  6  111.  App.  216;  Lomerson 

Minn.  413;  Alleghany  Savings  Bank  «.  Huffman,  1    Butcher,   625;    Row- 

«.  Meyer,  59   Pa.   St.   361;  Williams  land  «.  Plummer,  50  Ala.  182;  Hunt 

V.  Jones,   42  Miss.    270;  Lorman  v.  «.    Coon,    9    Ind.    537;    Williams  v. 

Phoenix  Ins.  Co.  33   Mich.    0'7;  Fisk  Housel,    2    Iowa,    154;     Farwell   v. 

V.  Weston,  5  Me.  410.  Howard,   26  Iowa,   381 ;    Reagan  «. 

3  Hewitt  V.  Wagar  Lumber  Co.  38  Pac.  R.  R.  Co.  21  Mi.  30;  Karnes  v. 
Mich.   701;    McNeill  v.  Roache,  49  Pritchard,  36  Mi.  135. 

Miss.  436. 


376  CHARGING    THE    GAKNISIIEE.- 

the  general  rules  of  evidence  remain  applicable.*  Should  the 
garnishee  plead  nulla  hona,  the  burden  of  proof  would  be  on 
the  plaintifF,3  if  allowed  to  traverse  such  answer.  If  the  garn- 
islice  admits  indebtedness  to  the  defendant  yet  states  that  the 
latter  owes  him  a  greater  sum,  and  the  ])]aintiff  traverses  the 
answer  and  alleges  that  the  debt  of  the  defendant  to  the  garni- 
shee is  not  due  and  therefore  not  a  good  offi?et,  the  burden  is 
then  u})on  the  plaintiff  to  prove  such  allegation. ^ 

The  presumption  is  not  in  favor  of  the  plaintiff  in  a  question 
between  him  and  the  garnishee  whether  the  latter  has  assets  of 
defendant  in  hand.  The  onus  is  upon  the  plaintiff.^  He  has 
the  affirmative  of  the  question,  and  the  presumption  favors  the 
negative.  He  may  probe  the  conscience  of  the  garnishee;  he 
may  traverse  the  answers  to  the  interrogatories,  but  he  must 
establish  the  fact  which  he  alleges.  H  in  answer  to  the  cate- 
gorical question,  "Have  you  assets  of  the  defendant  in  your  pos- 
session, or  credits  due  him,  liable  to  execution  upon  judgment 
against  him?"  the  garnishee  should  simply  answer  "  No,"  he 
should  be  discharged,  in  the  absence  of  evidence  aliande.  In 
such  case,  the  answer  discloses  not  only  sufficient  reason  but  the 
best  reason  possible  for  the  discharge.  ^ 

When  the  answer  admits  that  there  were  attachable  funds 
in  the  hands  of  the  garnishee  at  a  date  prior  to  the  service  of 
the  process  upon  him,  he  must  show  positively  that  he  did  not 
still  hold  them  at.  the  time  of  the  service.     If  he  states  that  he 


'Kelley?).  Weymouth,  68  Me.  197;  ■».  Piper,  2  N.   H.  439;  Greenleaf  v. 

Feary  ?).  Cummings  41  Mich.  376.  Perriu,  8  N.  H.  27:3 ;  Paul  «.  Paul,  10 

2  Caldwell  «.    Coates,    78  Pa.  St.  N.  H.  117;  Getchell   v.  Chase,  37  N. 

313.  H.  106. 

^  Cuny  ■».   The  National   Bank   of  ^  It  was  held  in   Alabama  that   a 

Augusta,  53  Ga.  28.  garnishee    claiming    ownership    by 

*  Rowland  «.  Plummer,  50  Ala.  182;  transfer  from  a  transferee  is  bound 
Hutchins  v.  Hawley,  9  Vt.  295 ;  Hoyt  to  prove  both  ti'ansfers,  and  to  show 
■».  Swift,  13  Vt.  129;  Qairo  &  St.  that  the  first  transfer  was  made  prior 
Louis  R.  R.  Co.  «.  Killenberg,  92  111.  to  the  service  of  the  garnishment, 
142;  Rippen  ■«.  Schoen,  92  111.  229;  for  a  valuable  consideration,  or,  if 
Sheldon -«.  Hinton,  6  111.  App.  216;  not  founded  on  such  consideration, 
AVilhelmi  v.  Hafiner,  52  111.  222;  that  he,  for  value,  accepted  a  trans- 
Haven  v.  "Wentworth,  2  N.  H.  93;  fer  from  the  original  transferee. 
Adams  «.  Barrett,  2  N.  H.  374;  Piper  Wiuslow  'c.  Bracken,  57  Ala.  368. 


TRAVERSE    OF    THE    A>;S\VER.  £77 

liad  expended  such  funds,  before  the  service,  for  the  defendant's 
beiielit,  he  may,  in  case  his  answer  is  traversed,  be  required  to 
sliow  specifically  in  what  manner  and  for  what  particular  pur- 
poses the  expenditure  was  made.  It  must  be  such  a  disburse- 
ment as  would  prove  a  i^ood  defense  were  he  sued  by  the  defend- 
ant in  the  attachment  suit.  The  onus  is  upon  him  when  the 
plaintiff  has  taken  issue  upon  the  answer,  after  the  admission 
that  he  held  such  funds  at  a  period  immediately,  or  within  a 
few  weeks  or  even  months,  preceding  the  service  of  the  writ.i 
It  is  true  that  the  garnishee  is,  in  some  sense,  the  attaching 
plaintiff's  witness;  and,  so  far  as  the  defenlaiit  is  concerned,  an 
ambiguous  answer  to  interrogatories  is  not  sufficient.  Tlie 
plaintiff  must  make  out  his  case  before  ihe  can  subject  tlie  de- 
fendant's credit  to  the  payment  of  his  claim. ^  By  traversing 
the  answer,  liowever,  as  above  remarked,  the  plaintiff  m^ay 
throw  the  burden  of  proof  upon  the  garni&hee  under  some 
circumstances. 

When  the  qnestion  is  whether  an  assignment  by  the  defend- 
ant to  the  garnishee  was  nuide  in  good  faith  and  for  a  valid  con- 
sideration, if  the  garnishee  claims  to  hold  in  his  own  right  by 
virtue  of  such  assignment,  the  plaintiff  may  offer  evidence  to 
prove  that  the  claimant  knew  of  the  claim  of  the  plaintiff 
against  the  defendant,  and  of  the  effort  to  reach  the  fund  in 
the  fi:nrnishee's  hands.  ^ 

The  omis  is  on  the  garnishee  to  sustain  an  answer  tliat  prop- 
erty held  by  him  is  held  subject  to  trust,  when  such  answer  is 
traversed.*  In  a  contest  with  the  plaintiff,  the  answer  of  the 
garnishee  is  not  evidence  on  the  trial  of  the  issue  whether  the 
latter  had  property  in  his  possession  subject  to  attachment, 
when  he  was  summoned.^ 

When  the  plaintiff  is  allowed  to  traverse  the  answer  of  the 
garnishee  and  to  contradict  it  by  other  testimony,  the  latter  has 
an  interest  in  the  contest  and  that  o;ives  him  the  riu'lit  to  meet 

>  Barker  ?;.  Osborne,  71  Me.  69.  ^  Sullivan   v.    Langley,  124  Mass. 

2  Spears    v.    Chapman,    43    Micli.      264. 
641.  *  Frank  v.  Frank,  6  SIo.  App.  589. 

'  Ci.shing  V.  Laird,  6  Ben.  4U«. 


878  CHARGING    THE    GARNISHEE. 

and  refute  such  testimorij  by  counter  evidence.  There  -would 
be  no  justice  in  a  proceeding  tending  directly  to  charge  him 
with  liability  unless  he  be  allowed  thus  to  resist  it.  His 
interest,  and  therefore  his  right,  is  confined  to  his  own  protec- 
tion from  the  danger  of  being  obliged  to  pay  twice,  if  he  is 
indebted;  but,  if  he  is  not  indebted,  his  interest  and  the  correl- 
ative right  give  him  the  position  of  a  resistant  against  the 
danger  of  being  condemed  to  pay  once.  Here  there  is  a  suit 
within  a  suit;  a  contest  within  a  contest;  and  it  is  manifest  that 
it  should  be  conlined  within  the  narrowest  bounds  consistent 
with  justice  to  all  the  parties.  The  defendant  in  the  attach- 
ment suit,  who  looks  on  without  participating  in  the  incidental 
contest,  sees  his  business  relation  with  his  agent  or  alleged 
debtor  undergoing  judicial  investigation,  and  gathers  items  that 
may  subserve  his  purpose  in  case  the  same  questions  should 
arise  in  any  subsequent  suit  by  him  against  the  third  person 
summoned  now  as  garnishee.  What  an  anomalous  state  of 
tilings  is  here  presented,  if  the  whole  subject  of  complicated 
accounts  and  protracted  and  multifarious  transactions  are  to  be 
examined  with  one  of  the  contradicting  parties  silent  while  the 
other  is  virtually  on  trial!  There  must  be  close  limits  assigned 
to  such  a  side  investigation.  Whatever  would  require  a  law- 
suit between  the  garnishee  and  his  creditor  for  elucidation? 
ought  not  here  be  drawn  into  question.  Whatever  is  certainly 
owing  and  liable  now  or  hereafter  to  execution,  without  any  con- 
ditions, should  alone  be  the  subject  of  evidence  aliunde.  The 
garnishee's  unsuspicious  statements  should  stand  unless  they 
can  be  clearly  contradicted  without  involving  the  grounds  of  a 
litigious  contest.  The  garnishee  ought  not  be  incidentally 
forced  into  a  long,  complicated  defense  of  himself  against 
the  defendant  by  an  attack  of  the  plaintiff  through  the  defend- 
ant, in  an  attachment  suit,  Avhen  there  yet  has  been  no  judg- 
ment against  the  defendant,  and  the  lien  arising  by  seizure  has 
not  been  perfected.  The  right  and  interest  of  the  attaching 
creditor  would  not  necessarily  be  wholly  lost  should  the  garni- 
shee be  discharged,  since  he  might  yet,  in  case  he  gained  judg- 
ment against  the  defendant,  levy  in  execution  upon  property  in 


TRAVERSE  OF  THE  ANSWER.  379 

the  third  person's  hands,  if  he  can  make  out  the  requisite  facts 
at  that  stage. 

If,  pending  tlie  attachment  suit,  tlie  plaintiff  should  be 
allowed  unlimited  scope  in  traversing  the  garnishee's  answers, 
there  would  be  no  end  to  the  litigation.  All  persons  interested 
ought  to  be  allowed  to  intervene,  and  there  would  be  confusion 
worse  confounded.  Certainly  the  inquiry  should  not  go  beyond 
the  question  whether  or  not  the  garnishee's  answers  are  true 
with  the  view  of  deciding  upon  his  immediate  liability  free 
from  all  contingencies  whatever. 

When  there  is  a  contest  between  the  attaching  creditor  and 
the  garnishee,  the  proceedings  had  against  the  principal  defend- 
ant are  the  basis  of  the  auxiliary  issue,  and  are  before  the  court 
to  be  taken  note  of  without  being  offered  in  evidence.  This  is 
palpable  where  the  contest  with  the  garnishee  is  in  the  general 
suit,  under  the  case  entitled  by  the  name  of  the  attaching  credi- 
tor against  the  defendant;  but,  thougli  not  so  readily  apparent, 
it  is  equally  true  when  the  auxiliary  issue  is  made  in  a  separate 
proceeding — by  the  plaintiff  in  the  attachment  suit  against  the 
garnishee.  In  such  minor  proceeding,  the  court  may  inspect 
the  record  of  tlie  major  case;  and  the  reason  is  that  the  issue 
against  the  garnishee  depends  on  the  state  of  the  principal  pro- 
ceeding. The  two  records  are  connected  by  the  absolutely 
necessary  allegations  in  the  second,  showing  the  first  to  be  the 
basis  upon  which  the  garnishee  is  sued.  No  proof  of  the  first 
record  is  necessary,  ^  unless  it  is  brought  from  another  court, 
wdien  it  should  be  identified;  or  from  another  State,  when  it 
should  be  properly  authenticated. 

After  the  interrogatories  and  summons  have  been  issued,  if 
the  garnishee  j^ay  the  defendant  before  he  is  served,  especially 
if  he  is  ignorant  of  the  issue  of  the  garnishment,  he  will  not 
be  liable  as  garnishee. ^  Even  if  the  notice  has  been  left  at  his 
residence,  payment  without  knowledge  of  it  will  acquit  him  of 
obligation  to  defendant  and  therefore  of  liability  to  the  attacli- 

^Farrington   v.   Sexton,  43   ]\rich.  separately  when  it  is  all  necessarily 

454:    "The  whole  record  is  connect-  together  before  the  same  trilninal." 

ed,  and  it  would  be  a  vain   and   use-  Strong  v.  Ilollon,  39  3Iich.  411. 
less    cei  emouy    to    introduce   proof  ^  Landry  v.  Chayret,  58  N.  H.  89. 


380  CHARGING    THE    GARNISHEE. 

ing  creditor.  If  a  co-obli^ii;or  pay  tlie  debt,  it  will  be  settled  as 
tj  the  garnishee,  and  he  will  be  exempt  from  liabilitj'-,  provided 
the  co-obligor  knew  nothing  of  the  issuance  of  the  garnish- 
ment; though,  if  service  has  been  made,  both  co-debtors  might 
be  presumed  to  know  of  it  and  to  be  estopped  from  making 
payment  to  the  defendant. ^  Generally,  where  a  clerk  or 
employee,  authorized  to  pay  for  liis  principal,  settles  a  debt  in 
due  course  of  business  without  knowledge  of  the  i>-arnishment 
of  the  principal,  without  any  collusion  on  the  part  of  the  prin- 
cipal, and  under  such  circumstances  that  the  principal  could  not 
have  countermanded  the  agent's  general  authority  to  pay  by 
reason  of  distance,  want  of  time  or  some  other  good  cause,  the 
garnishee  ought  not  be  held.  Especially  if  the  principal  is  a 
corpoj-ation  which  must  necessarily  act  through  agents,  should 
it  be  held,  harmless  if  a  paying  officer  has  dischai-ged  an  obli- 
gation before  it  was  practicable  for  the  officer  served  with  the 
process  to  communicate  with  such  disbursing  officer. 

The  burden  of  proof  in  any  such  case  would  be  upon  the 
garnishee  to  show  good  faith  and  absence  of  any  intention  to 
side  with  the  defendant  rather  than  with  the  plaintiff  in  mak- 
ing the  payment,  and  ignorance  on  the  part  of  the  person 
actually  settling  the  debt,  of  the  fact  of  the  service  upon  the 
principal,  and  want  of  opportunity  by  the  latter  to  inform  the 
agent. 

When  the  garnishee  is  already  sued  for  the  sum  he  owes,  he 
ought  not  to  be  held;  for  the  person  issuing  the  garnishment  can 
better  attain  his  end  by  seizing  the  right  of  the  plaintiii'  in  the 
suit  against  the  garnishee.  However,  if  the  garnishment  can 
be  pleaded  in  bar  of  the  action,  under  statutory  provision,  the 
garnishee  would  not  be  liable  to  a  second  payment,  and  the 
garnishment  may  be  maintained.  Even  then,  however,  the 
summons  must  be  made  in  time  to  enable  the  garnishee  to 
defend  the  action  against  him  by  such  plea,  as  it  would  be  too 
late  after  judgment  rendered.  He  could  not  plead  such  sum- 
mons in  arrest  of  judgment. 

If  indebted    when    served  with  garnishment  process,  he  can- 

1  Storm  V.  Cotzliausen,  33  Wis.  139. 


TRAVERSE    OF    THE    ANSWER.  381 

not  he  discharged  by  pleading  payment  of  a  judgment  after- 
wards rendered  against  him  for  his  debt. 

A  garnisliee  who  has  admitted  a  sum  to  be  due  the  defendant, 
may  have  judgment  entered  against  him  accordingly,  though  it 
became  due  after  the  defendant.had  tiled  his  plea.^  But  if  he 
answers  that  the  defendant  has  sold  what  he  holds,  or  a  part 
thereof,  he  will  not  be  liable  for  Avhat  was  sold  before  the  service 
of  the  interrogatories,  even  though  such  sale  be  subsequently 
set  aside  as  fraudulent.*  Doubtless  he  might  be  reached  by 
garnishment  after  a  final  judgment  setting  aside  such  sale,  if 
the  property  should  still  be  in  his  possession.  It  will,  of  course, 
be  understood  that  the  answer  setting  up  the  sale  must  be  made 
in  good  faith,  and  not  shaken  by  traverse,  in  order  to  relieve 
the  garnishee  of  liability  in  such  case. 

Should  the  garnishee  admit  indebtedness  to  the  defendant  yet 
disclose  the  fact  that  the  indebtedness  was  for  property  he  had 
bought  of  the  defendant  and  that  the  latter  held  a  lien  upon 
the  property  for  its  payment  and  had  filed  a  bill  to  enforce  the 
lien  to  an  amount  as  great  or  greater  than  the  sum  claimed  by 
the  attaching  creditor  upon  which  the  garnishment  was  issued, 
it  has  been  held  that  he  ought  not  to  have  judgment  ren- 
dered against  him  as  garnishee. ^ 

A  garnishee  may  answer  that  he  owes  the  defendant,  and  his 
answer  may  be  true;  but  if  the  defendant  is  the  agent  of  a 
principal,  the  latter  may  successfully  claim  the  fund.  The 
garnishee  may  have  done  business  with  the  defendant  and  come 
under  obligations  to  him,  without  knowinor  that  the  latter  was 
acting  in  the  capacity  of  agent  for  another.  He  may  be  liable 
to  a  suit  for  the  enforcement  of  such  obligations.  But  the 
agent's  right  to  sue  is  derived  from  the  principal;  and  that 
right  continues  only  during  the  principal's  pleasure.  The 
garnishee  may  be  sued  by  tlie  agent's  principal,  whose  right  is 
superior  to  that  of  the  agent.  And,  in  an  attachment  proceed- 
ing;, after  the  o^'^rfiishee  has  answered  that  he  owes  the  defend - 

'  Mullen    V.  Maguire,    10    Pbila.  ^  Meyer  v.   Deffarge,  30    La.   An. 

435.  "  Part  1.548. 

«  Vertrees  v.  Hicks,  4  Bax.  380. 


382  CHARGING    THE    GAKNISIIEE. 

ant,  the  principal  of  that  defendant  may  claim  the  deht;  and 
upon  the  establishment  of  the  fact  that  the  garnishee  owes  the 
defendant  who  is  the  agent  of  the  claimant,. he  will  be  entitled 
to  have  the  attachment  set  aside. ^ 

Sec.  8.    Charging-Order,  Interest  and  Costs. 

The  only  judgment  that  can  be  rendered  against  the  garni- 
shee, at  this  stage  of  the  proceedings,  before  there  has  been 
any  rendered  against  the  principal  defendant  and  the  property 
attached  or  subjected  to  garnishment,  must  necessarily  be 
merely  interlocutory.  Being  subsidiary  to  the  main  decree,  it 
cannot  possibly  possess  finality  before  that  shall  have  been  ren- 
dered. No  final  judgment,  except  one  in  favor  of  the  garnishee, 
pronouncing  his  discharge, can  be  rendered  in  the  side  suit,  until 
the  principal  suit  shall  have  been  prosecuted  Ito  its  termination, 
and  that  termination  must  be  favorable  to  the  attaching  creditor 
if  he  is  to  have  final  judgment  and  execution  against  the 
garnishee. 

When  the  garnishee  owes  the  defendant  a  debt  bearing  inter- 
est, he  is  liable  for  the  interest  unless  prevented  from  paying 
the  debt  by  the  garnishment.  If  he  has  attachable  funds  in  his 
hands  which  he  has  put  at  interest  he  is  liable  for  what  they 
yield.  If  he  has  property  attachable,  he  is  responsible  for  its  fruits 
which  he  gathers  after  notice.  If  he  uses  what  is  attached  in 
his  hands  in  his  general  business  so  that  it  is  not  distinguisha- 
able  from  his  own  property  or  funds,  he  should  account  for  its 
usufruct,  if  practicable,  or  pay  legal  interest  on  the  amount  or 
value. 

The  fact  of  his  being  in  receipt  of  interest  from  money,  or 
usufruct  from  property  attached  in  his  hands,  or  in  the  enjoy- 
ment of  an  interest  bearing  obligation,  must  be  made  to  appear, 
by  his  answers  or  otlierwise,  to  render  him  chargeable  for  inter- 
est or  fruits.  His  contract  with  the  defendant,  the  note  which 
he  has  given,  the  character  of  their  relation  of  debtor  and  cred- 
itor under  the  law  and  the  usages  of  business,  generally  enable 

>  Sheehan  v.  Marston   &  Trustee,  132  Mass.  161. 


CHARGING    OEDEK    INTEREST    AND    COSTS.  383 

the  court  to  see  wlictlicr  it  is  just  to  clini-ge  the  lionestly-ans- 
wering  garnishee  bejoiid  the  property  attached  or  the  principal 
Slim  arrested  in  his  hands. 

Interest  is  chargeable  against  the  shirldng  or  falselj'-ans- 
wering  garnishee  \\ho  makes  delay  in  the  collection  of  the  debt 
adjudged  to  be  due  the  plaintiff  bj  colluding  with  the  defend- 
ant or  otherwise  in  any  traudulent  way.  If  he  risks,  in  ven- 
tures of  his  own,  money  attached  under  such  circumstances 
that  it  ought  to  be  held  by  him  as  a  mere  custodian,  he  is  liable 
to  legal  interest  and  ought  to  account  for  any  beneiit  accruing 
by  the  illegal  veuiure. 

Whenever  the  defendant  would  have  been  entitled  to  interest 
had  no  attachment  been  laid,  the  plaintiff  in  a  successful  attach- 
ment suit  will  be  so  entitled,  so  far  as  interest  is  due  at  the  date 
of  the  summons;  and  he  will  be  entitled  to  such  interest  as  may 
thereafter  accrue.  Of  course,  none  can  thereafter  accrue  if  the 
arrest  in  the  hands  of  the  garnishee  stops  interest  from  running 
by  locking  up  the  funds  in  his  hands  as  a  mere  holder  of  a  stake, 
and  the  garnishee  derives  no  beneiit  by  using  what  is  legally 
thus  withheld  from  use. 

Notes  not  matured,  Ijearing  interest  from  date,  acknowledo-ed 
by  the  garnishee  tu  have  been  given  by  him  to  the  defendant 
and  to  be  of  an  nnnegotiable  character,  and  to  be  still  in  the 
defendant's  hands  since  no  notice  of  transfer  has  been  given, 
continue  to  bear  interest  after  the  summons  of  garnishment 
just  as  before,  and  the  interest  becomes  part  of  the  ever-growing 
debt  and  is  subject  to  the  attachment  like  the  princiiDal. 

When  the  garnishee  is  ready  to  pay  the  defendant  what  he 
owes,  ready  to  pay  it  over  to  the  plaintiff"  whenever  ordered  to 
do  so  by  the  court,  is  restrained  from  using  what  he  holds  and 
from  deriving  any  benefit  by  the  holding  and  is  an  honest  and 
fair-dealing  respondent  to  interrogatories,  he  is  not  chargeable 
with  interest.  When  the  note  he  has  given,  or  the  contract  he 
lias  made,  or  the  obligation  lie  has  in  any  way  incurred,  is  not 
interest-bearing,  it  cannot  be  made  of  different  character  by 
the  mere  act  of  attaching  it. 

The  garnishee  is  not  supposed  to  make  any  use  of  the  money 
in  his  hands  from  the  time  of  summons  to  the  time  when  he 


384  CHARGING    THE    GATINISIIEE. 

pays  it  into  court  under  order,  and  therefore  he  owes  no  interest 
for  such  time.  Whatever  it  is  his  duty  to  do  he  must  be  pre- 
sumed to  do.  Unless  such  presumption  is  rebutted,  lie  cannot 
be  required  to  pay  interest  on  funds  thus  held.  There  is  an 
exception  to  this  presumption  when  the  money  ought  to  be 
deposited  in  court  when  attached,  but  is  held  by  the  garnishee 
till  after  iinal  judgment  against  the  defendant  and  till  an  order 
of  court  for  the  paying  over  of  the  funds  subjected  to  garnish- 
ment. And  in  case  the  garnishee  has  denied  the  possession  of 
funds  in  his  hands,  and  such  possession  has  been  established  by 
evidence  aliunde,  there  will  be  no  presumption  that  he  held  the 
funds  without  using  them  from  the  time  of  summons  till  the 
payment  into  court  under  order. 

Interest  by  way  of  damage  caused  by  the  acts  or  omissions 
of  the  defendant,  are  not  chargeable  against  the  garnishee.  The 
latter  is  chargeable  for  the  interest  which  he  has  received,  and 
also  for  such  as  he  has  obligated  himself  to  pay.i  A  garnishee 
under  a  void  process  is  not  relieved  from  paying  interest  on 
money  in  his  hands  to  whom  it  is  due;  especially  when  it  does 
not  appear  that  such  money  has  been  set  apart  to  answer  the 
summons.  2 

It  is  a  hard  case  for  an  innocent  and  frank-answering  garni- 
shee, totally  disinterested  in  the  litigation  as  he  is,  to  be  mulct  in 
costs.  Yet,  if  his  denial  is  traversed,  and  witnesses  pro  and  con 
brought  in,  and  continuances  follow,  and  commissions  issue, 
and  a  protracted  contest  between  him  and  the  plaintiiF  ensue, 
(which  he  is  obliged  to  encounter  or  suffer  wrong,)  and  finally 
he  be  adjudged  liable  as  garnishee,  the  costs  may  exceed 
the  fund  in  hand.  The  hardship  in  any  such  case  clearly 
appears  upon  the  reflection  that  he  had  no  agency  whatever  in 
provoking  the  litigation,  no  chance  whatever  of  being  benefitted 
by  it  in  any  event,  and  was  driven  to  defend  himself  by  way  of 
protection  from  being  wronged.  The  fact  that  he  is  finally 
adjudged  liable  is  no  justification  of  the  hardship;  for,  to  say 
nothing  of  his  loss  of  time  and  of  the  inestimable  annoyance 

•Abbott  V.  Stinchfield.  71  Me.  213;  »  Hawkins  v.  Ga.  Bank,  61  Ga.  106. 

Smith  V.  Flanders,  120  Mass.  322. 


CirAKGING    ORDEIt    INTEREST    AND    COSTS.  385 

he  h:is  sufibred,  he  is  mulct  in  costs  for  no  luult  of  his,  even 
though  the  court  condemn  him  to  pay;  for  he  had  the  un- 
doubted right  to  defend  himself. 

It  is  different,  so  far  as  concerns  the  hardship,  when  the 
garnishee  causes  the  traverse,  protracted  litigation  and  increased 
costs  hy  his  own  fraud,  crookedness,  collusion  with  defendant 
and  other  reprehensible  courses.  In  such  case,  if  finally  found 
chargeable,  costs  are  not  too  much  of  a  punishment  for  him. 

Where  the  property  or  credit  subjected  to  garnishment  proves 
suflicient  to  pay  both  debt  and  costs,  the  garnishee's  costs  may 
be  covered  by  it,  as  usually  they  are.  It  is  but  just  to 
tax  a  reasonable  fee  for  the  garnishee's  counsel,  to  be  paid  with 
the  rest  of  the  costs  out  of  the  seized  and  subjected  property. 
The  nice  questions  of  jurisdiction  which  are  frequently  involved 
in  attachment  suits  render  counsel  indispensable  to  the  safety 
of  the  garnishee  in  making  payments  under  orders  of  court. 

The  rule  is  settled  that  the  garnishee  is  not  personally  liable 
to  costs  when  he  acknowledges  indebtedness  or  possession  of 
the<le{endant's  property  and  does  not  resist  the  p-arnishment.i 
]So  judgment  can.be  rendered  against  him  beyond  the  amount 
in  his  hands,  either  for  principal  or  costs.  On  the  other  hand, 
the  rule  is  pretty  general  that  he  is  liable  to  costs  when  a  con- 
test ensues  between  him  and  the  attaching  creditor  upon  his 
denial  of  having  property  or  credits  of  the  defendant  subject 
to  execution,  if  he  fails  in  such  contest. ^  So,  also,  if  he  does 
"tiot  respond  to  the  interrogatories,  fails  to  meet  thera  fairly,  or 
neglects  them  altogether. 

So  long  as  the  litigation  is  confined  to  the  proper  parties,  the 
third  person  ques'-ioned  cannot  be  put  in  a  worse  position  than  he 
was  before  the  summons  by  being  required  to  pay  the  costs  of 
the  proceeding  which  brought  him  into  court  on  other  people's 
business-  The  reason  of  his  liability  for  costs,  in  the  instances 
above  maintained,  is  that  he  himself  needlessly  provokes  much 
greater  costs  by  contesting  his  own  liability  than  would  other- 
wise arise; 3  but  the  reason  seems  not  well  founded,  for  he  would 

'Johnsons.  Delbridge,   35   Mich.  ?  Strong  i;.  Hoi  Ion,  39   Mich.   411, 

43G ;  Zimmer  v.  Davis,  Id.  31).  »  Lucas  v.  Campbell,  8S  111.  447. 

25 


386  CHARGING    THE    GARNISHEE. 

never  have  gi\'en  rise  to  such  further  costs  had  he  been  letah:)ne. 
lie  is  not  the  oriii,-inal  instigator  of  the  contest  between  himself 
!ind  the  attaching  creditor.  He  tries  to  protect  himself,  with- 
out possible  further  benefit. 

The  ijarnishee  who  has  not  made  an  issne  is  entitled  to  costs.' 

CD 

He  is  as  much  entitled  as  a  mere  witness ;3  and  when  the 
character  of  litigant  is  forced  npon  him,  the  court  ought  to 
allow  him  reasonable  costs.  Always  when  the  judgment  is  in  . 
his  favor,  after  his  litigation  npon  an  issue,  he  is  entitled  to  his 
costs.  And  when  it  is  against  him,  the  court  may  award  him 
costs, 3  for  it  may  be  no  fault  of  his,  but  rather  a  duty,  to  test 
the  question  of  his  liability,  under  many  conceivable  circum- 
stances. Costs  were  allowed  to  a  garnishee,  who  Avas  summoned 
and  who  appeared  and  answered,  though  meanwhile  the  case 
had  been  abandoned  by  the  plaintiff. ^ 

It  was  held  that  the  costs  of  the  attachment  proceedings 
should  be  paid  out  of  the  fund  brought  into  court  by  the  garn- 
ishee who  was  indebted  not  only  to  the  defendant  but  alsu  to 
the  interpleaders. 5 

The  garnishee  is  entitled  to  discharge  and  to  an  allowance  of 
his  costs,  where  there  has  been  an  abuse  of  process,  miduo 
delay  in  bringing  in  the  principal  defendant,  or  other  injurious 
acts  or  laches  of  the  attaching  creditor. «  But  if  he  has 
answered  denying  indebtedness  and  is  troubled  no  further,  he 
would  not  be  entitled  to  any  costs  at  subsequent  terms  of  court 
with  the  case  still  pending,  though  the  defendant  does  not 
appear  to  protect  himself.''  If  the  case  requires  attention, 
however,  in  order  to  prevent  a  wrongful  order  on  such  answer, 
and  the  garnishee  is  obliged  to  keep  counsel  employed  to  pro- 
tect his  rights,  he  ought  to  be  allowed  costs   and  attorney's  fees 


»  Cuny  V.   National   Bank  of  Au-  *  Duftee  v.   Call,   123    Mass.   318; 

gnsta,  53  Ga.  28;  Hammettw.  Morris,  Browu  v.  Seymour,  1  Pick.  33. 
55  Ga.   644.     See    Selz   v.   Atkinson  ^  Baker  -».  Lancashire   Ins.    Co.  53 

Bank,  55  Wis.  225.  Wis.  193. 

2  Washburn  v.  Clarkson,  123  Mass.  *  Noble  v.  Bourke,  44  Mich.  193. 

819.  '  Uawkius  v.  Graham,  128  Mass.  20. 

»  Strong  V.  Hollon,  39   Mich.   411. 


CHARGING   ORDEli    INTEREST    AND    COSTS.  387 

in  sncli  subsequent  terms.  But  such  allowances,  when  not 
authorized  by  statute,  are  within  the  discretion  of  the  court.  ^ 
Where  there  is  a  rule  to  show  cause  why  judgment  should 
not  be  rendered  against  the  garnishee,  a  failure  of  the  plaintiff- 
in-rule  to  appear  at  the  time  apjx)inted  for  its  hearing  is  good 
ground  for  a  motion  by  the  garnishee  that  the  garnishment  be 
discontinued  or  the  plaintiff-in-rule  non-suited. ^  And  if,  after 
the  garnishee  has  been  discharged  under  such  circumstances, 
the  defendant  should  assign  his  property,  the  subsequent 
appearance  of  the  plaintiff  and  the  garnishee  could  not  affect 
the  vested  rights  of  the  assignee;  and  this  would  be  true, 
though  the  assignment  be  made  on  the  same  day  as  the  writ  of 
garnishment. 3  If  the  plaintiff  commits  laches  by  delaying 
unreasonably  to  take  the  garnishee's  deposition,  the  latter  may 
be  discharged;*  so  also  if  he  fails  to.  bring  the  principal  defend- 
ant into  court  bj  reason  of  liis  own  laches.^  When  the  garni- 
shee is  discliarged,  the  costs  fall  on  the  plaintiff;  when  cha)'ged, 
upon  the  defendant  or  the  property  or  hind  attached,  if  there 
is  tinal  judgment  for  the  plaintiff". 

» lb.  e.  Tabor,  29   Mich.    199.     In   Mich., 

*  Wilcox  ».  Clement,  4  Den.  162;  judgment  of  non-suit  must  be  en- 

McCarty    «.   McPlierson,   11   Johns.  tered    if    plaintiff    fail    to    appear. 

407 ;  Shufelt  xi.    Cramer,    20  Johns.  Johnson  v.  Dexter,  38  Mich.  695. 

309;  Barber  v.  Parker,  11  Wend.  52;  »  Johnson  ».  Dexter,  38  Mich.  695. 

Stadler  v.  Moors,  9    Mich.  264;  Eed-  *Demeritt  v>.  Estes,   56   N.  H.  313. 

man  ».  White,  25  Micli.  526;  Brady         «  Noble  v.  Bourke,  44  Mich.  193. 


388  TUE    DEBTOJR    APrEAKIKG    AND    EOMDINO. 


CIIAPTEIl     XII. 
THE    DEBTOR    APPEARING    AND    BONDING. 

g  1.     Special  Appearance.  §  4.     The  Forthcoming  Bond. 

2.  General  Appearance.  5.     The  Bond  to   Dissolve  —  its 

3.  Withdrawal  of  Attorneys  —  its  Effect. 

Effect   on    Previous  Ap-  5.    The  Bond  to  Dissolve — Surety. 

pearance. 

Sec.  1.    Special  Appearance. 

The  law  governing  the  appearance  of  the  defendant  in  attach- 
ment suits  it  much  the  same  as  in  other  classes  of  cases,  and 
therefore  authorities  on  the  subject  may  be  properly  drawn 
from  decisions  upon  the  general  practice  as  well  as  from  those 
concerning  the  distinct  subject  of  this  treatise. 

Appearance  is  either  special  or  general. 

Special  appearance  is  the  coming  of  the  defendant  into  court 
and  making  entry  on  the  record  of  the  purpose  for  which  he 
appears,  which  must  be  something  less  than  defending  the  suit 
upon  its  merits.  Whether  previously  served  with  sumrnons 
or  not;  whether  a  publication  notice  has  been  made  or  not,  the 
defendant  may  voluntarily  appear  either  specially  or  generally. 

The  usual  purposes  of  special  appearance  are  to  quash  the 
proceedings  for  irregularities  patent  upon  the  record,  to  except 
to  the  jurisdiction,  and  even  to  set  aside  judgments  rendered 
by  default  or  otherwise  on  the  ground  of  want  of  jurisdiction. 

The  advantage  of  a  special  appearance  to  the  defendant  is  in 
the  o])portunity  which  it  gives  him  to  object  iv  limine  to  irregu- 
larities without  being  prejudiced  in  consequence v/hen  he  comes 
to  answer  to  the  merits.  He  may  succeed  thus  in  defeating  the 
action  at  its  threshold;  but,  if  unsuccessful,  he  may  either  stay 
Gilt  of  court  and  risk  the  almost  certain  result  of  being  defaulted, 
or  he  may  regularly  ai^pear  and  defend  upon  the  merits,  reserv- 


SrECIAL    Ari'KA RANGE.  330 

ingtlie  questions  previonsly  overruled  when  tlicy  concern  juris- 
diction, (except  such  jurisdictional  matters  as  are  waived  by 
answer,)  or  when  the  practice  of  his  State  allows  such  reserva- 
tion of  other  points  decided  in  limine. 

lie  is  not  deemed  a  personal  party  to  the  suit  by  reason  of 
his  special  entry  of  record  for  any  of  the  purposes  above  men- 
tioned, if  he  confines  himself  to  them  in  his  motion.  For 
instance,  he  may  move  to  quash  for  reasons  ap})arent  on  the  face 
of  the  papers  without  subjecting  himself  to  all  the  consequences 
of  becoming  a  party  to  the  suit  to  which  he  may  not  even  have 
been  summoned  or  notified;  or,  if  summoned,  to  which  he  has 
not  responded  as  a  party  by  coming  unconditionally  into  court.  ^ 
By  such  appearance,  he  does  not  assent  to,  or  cure,  any  want 
or  defect  of  summon  or  other  errors  of  the  proceeding. ^  Even 
if  the  defendant  makes  a  special  appearance  to  appeal  the  case, 
he  thus  makes  no  waiver  of  objection  to  the  service. ^ 

When  the  defendant  appears  to  object  to  the  jurisdiction 
because  he  was  not  served,  or  not  properly  served,  he  cannot  be 
held  as  thereby  responding  to  the  summons  and  submitting  to 
the  jurisdiction;*  but  if  he  appears  to  object  to  the  jurisdiction 
on  other  grounds  than  want  of  summons,  there  is  a  waiver  as 
to  the  summons.  5  Unless  the  record  shows  that  the  defendant 
means  to  confine  himself  to  the  question  of  jurisdiction,  he 
will  be  deemed  in  court  for  general  purposes  when  he  pleads  to 
the  jurisdiction;^  but  an  unserved  defendant  may,  with  proper 
reservation  entered,  specially   appear  and  even  move   to  set  a 

'Lane   v.   Leech,    44  Mich.    1G8;  National  Furnace  Co. v.  Mobile  Iron 

Bushey  v.  Raths,  45  Mich.  181;  Lor-  Works,  18  Fed.  Kep.  8G3. 

lug  ®.  Wittich,  16  Fla.  617;  Johnson  ^  Martin  v.  Thierry,  29   La.  Ann. 

V.    Buell,   26   111.    66;  Blackwood  v.  3G2. 

Jones,  27  Wis.  498;  Pry  «.  Hannibal  *  Lee  v.    O'Shannessy,    20   Minn.- 

&  St.  Jo.   R.    R.    Co.    7;5    Mo.   123;  173;  Covert «.  Clark,   28   Minn.  539; 

Evans  v.  King,  7   Mo.  411;  Whiting  Michels  v.  Stork,  44  Mich.  2;  Cedar 

V.  Budd,  5  Mo.  443;  Moore  ■».  Dicker-  Hill  &c.  Mining  Co.  v.   Jacob  Little, 

son,  44  Ala.  485;  Bonner  v.  Brown,  &c.  Mining  Co.  15  Nev.  302;  Mur- 

10  La.  Ann.  334;  Crury  v.   Barber,  1  phy  v.  Ames,  1  Montana,   277;  Poto- 

Col.  172;  Manice  v.  Gould,   1   Abb.  mac  Steamboat  Co.  «.  Clyde,  51  Md. 

Pr.  (N.  S.)  255.  174;  Heffner  v.  Gunz,  29   Minn.  108. 

2  Rodol ph  ■».  Mayer,  1    Wash.  Ter.  ^  Church  ».  Crossman,  49  Iowa,  444. 

154;  Stanley  «.  Arnow,  13  Fla.  361;  «  Aultman  r.  Stinan,  8  Neb.  109. 


390  THE    DEBTOR    APPEARING    AND    BONDING. 

default  aside  witlioiit  rendering  himself  liable  to  the  rendition 
of  a  final  personal  judgment  ao-ainst  liim.i  For,  the  oljject  is  to 
correct  the  error  of  pronouncing  default  without  citation,  and 
"it  can  hardly  be  chiimed  that  by  making  the  objection  he 
cures  the  very  defect  complained  of."^  Objection  for  want  of 
service  is  exception  to  jurisdiction;  and  the  defendant  may 
afterwards  plead  to  the  merits  without  prejudice.  The  objec- 
tion is  waived  only  when  he  so  ])leads  in  tlie  first  instance 
without  insisting  on  the  absence  or  illegality  of  service,' 
Though  he  should  specially  appear  after  judgment  and  move  to 
strike  the  case  from  the  docket  for  want  of  service,  he  would 
not  thus  cure  defects  nor  make  the  void  decree  a  valid  one;* 
but  the  result  has  been  held  to  be  otherwise  upon  general 
appearance  after  judgment.  ^ 

A  general  appearance  does  not  preclude  setting  up  want  of 
jurisdiction  in  the  answer,*'  except  when  the  jurisdictional 
objection  is  susceptible  of  being  waived,''  It  has  beendield 
that  a  defendant,  notihed  by  publication,  ma}"  appear,  and  move 
for  a  new  trial,  after  the  decree  has  been  entered  against  his 
property,  without  thus  giving  the  judgment  a  personal  char- 
acter. ^  The  reason  assigned  was  that  "the  judgment,  being  in 
rem,  had  binding  force  only  against  the  attached  property;  that 
upon  such  judgment,  the  property  of  the  defendant,  other  than 
that  which  was  attached,  could  not  be  sold,  nor  does  the  jndg- 
ment  operate  a  lien  thereon.  *  •»  *  Banta  v.  "Woods,  32 
Iowa,  469.  There  were  no  defects  in  the  judgment  to  be  cured. 
It  was  a  judgment  in  rem,  and  had   no  other  force  or  effect. 

1  Boals  v.  Sliules,    29   Iowa,  507;  ^  ^.^derson  ?).  Coburn,  27  Wis.  558, 

Jones  V.  Byrd,  74  111.  115;  Kleinin  v.  5G4. 

Dewes,  28  Id.  317.  «  Wheelock  v.   Lee,  74  N.  Y.  489; 

2Boals«.  Sliules,29  Iowa,  507-9.  Landers  «.  Staten  Island  R.    R.    Co. 

3  Harkuess  v.  Hyde,   98  U.  S.  476;  53  Id.  460;  Biown   v.  Saratoga  R.  R. 

Stanley  «.  Arnow,  13  Fla.  361 ;  Black  Co.  18   Id.   495;    Du  Puy  «).  Strong, 

V.  Clendenin,  3  Montana,  44.  37  Id.  372. 

^Dorr-B.  Gibboney,  3  Hughes,  C.  'Varner  v.   Radcliff,   59   Ga.   448; 

C.  382;  Potomac   Steamboat   Co.   v.  Crowell  «  Galloway,  3  Neb.  215. 

CI j-de,  51  Md,  174;  Covert  V.    Clark,  »  Mayfield    v.    Bennett,    48  Iowa, 

23  Minn.  539.     (See  Curtis  v.  Jack-  194. 
son.  Id.  268.) 


SPECIAL    APPEARANCE.  391 

The  appearance  of  the  defendant,  by  filing  a  petition  to  vacate 
it,  does  not,  in  the  absence  of  any  action  upon  his  petition, 
give  the  judgment  more  force,  or  make  it  different  from  wliat 
it  was  bafore.  If  it  was  hi  rem  only,  it  so  remained  after  the 
petition  to  set  it  aside  was  dismissed." 

An  appeal  may  be  taken — the  defendant  specially  appearing 
therefor — without  waiving  objection  to  service;^  though  aj)pear- 
ance  for  that  purpose  has  been  held  to  be  a  general  one.  ^ 

One  who  specially  enters  his  ap})earance  on  the  record  to 
object  to  the  juristliction  of  the  court,  Avill  be  held  to  have 
made  a  general  answer  if  it  is  in  any  respect  responsive  to  the 
merits.* 

Should  he  plead  prescription,  he  M'ill  be  deemed  to  have 
made  a  general  appearance,  however  he  may  have  made  his 
euti-y.*  Should  he  ask  for  default,  he  will  be  treated  as  a  gen- 
eral appearer,  though  he  may  have  entered  himself  as  appearing 
specially  to  contest  the  sufficiency  of  service. ^  Should  he 
move  for  a  stay  of  proceedings  to  give  him  time  for  answering, 
lie  would  be  a  general  appearer;  and  he  waives  all  defects  in 
the  service  of  process.'  Should  he  tile  a  demurrer  and  obtain 
leave  to  answer,  he  would  make  a  general  appearance. '  Should 
he  ask  a  continuance,®  or  consent  to  one,'  without  reservation, 
the  effect  is  general. 

» Martin  o.  Thierry,   29   La.   Ann.  Id.  220;  Tall  man  t;.  McCarty,  11  Id. 

363.  401;  8tonacli   «.  Glessner,  4  Id.  275; 

2  Wasson  c.  Cone,  86   111.  46;  City  Adams  Express  Co.  «.  Hill,  43  Ind. 

of  Alton®.  Kiiscli,  68  111.  261.  157.     In  Pa.  the  defendant's  appear- 

*  He  Macauly,  27  Hun.  577:  Handy  ance  de  bene  esse  is  conditional.  If 
0.  Ins.  Co.  37  Ohio  St.  366-9.  the  summons  be  returned   "served" 

*  Miller  «.  Whitehead,  66  Ga.  283.  it  is  general,  but  otherwise  special. 
But  even  a  general  appearance  by  Blair  «.  Weaver,  11  Ser.  &  Rawle, 
attorney  is  not  retroactive  to  avoid  87.  "  Such  an  appearance  is  pecul- 
prescription  previously  acquired:  iar  to  Pennsylvania  practice.  It  is 
Etheridge  v.  Woodley,  83  N.  C.  11.  not  found   in  the  English  practice." 

5  Pry  V.  Hannibal  &  St.  Jo.  R.  R.  Bolard  v.  Mason,  66  Pa.  St.  138,  140. 
Co.  73  Mo.  123.  'Miller    v.    State,    35    Ark.    276; 

6  Ins.   Co.   of    North    America  v.  Myers  v.  Smith,  29  Ohio  St.  120. 
Swineford,   28  Wis.  257;    Keeler  v.  «  Lane  ».  Leech,  44  I\Iich.  163. 
Keeler,  24  Id.  522 ;  Upper  Mississippi  •  Miller  v.  State,  35  Ark.  276. 
Transportation  Co.   a.  Whitaker,  16 


892 


THE    DF/r.TOR    ATM'KAFJNG    AND    TIOXDIXG. 


Tliongli  the  debtor  may  make  liis  first  appearance  for  the  pur- 
pose of  suing  out  a  writ  of  error,  yet  if  the  case  should  be 
remanded,  he  may  be  considered  in  court,  and  a  trial  may  be 
had  contradictorily  with  liim.^  A  special  appearance  to  con- 
test the  jurisdiction  of  the  court,  does  not  confer  jurisdiction 
upon  the  court,  over  the  appearer  as  defendant  in  the  suit. 2 

The  sufficiency  of  notice  cannot  be  questioned  by  the  defend- 
ant after  he  has  responded  to  it  by  making  appearance.  ^  Nor 
can  he  complain  that  he  has  received  no  notice  of  proceedings 
against  a  garnishee,  if  he  has  come  into  court  personally  or  by 
attorney  without  making  objection.'*  I*^otice  to  him,  of  the 
garnishment,  is  jurisdictional  when  required  by  statute. ^ 

Besides  the  absence  or  illegality  of  summons  or  notifica- 
tion, patent  defects  in  the  affidavit,  the  bond,  the  writ,  and  the 
return  are  fruitful  sources  of  objections  that  may  be  made  upon 
s]-»ecial  appearance.  Such  objections  are  often  interposed  after 
general  entry,  before  answer  to  the  merits,  but  they  may  be  set 
up  specially  by  the  defendant  without  making  himself  a  Jjarty 
to  the  suit  for  all  purposes. 

When  the  objections  of  a  special  appearer  have  been  over- 
ruled, and  he  does  not  then  answer  to  the  merits,  he  is  treated 
as  not  in  court,  and  may,  at  the  proper  time,  be  defaulted  for 
non-appearance,^  (if  he  has  been  cited  or  notified,)  just  as 
though  he  had  not  been  in  court  in  any  capacity. 

Sec.  2.    General  Appearance. 

Appearance  is  always  deemed  general,  when  it  is  unqualified. 
Ajid  when  it  is  not  entered  as  special  or  conditional,  the  defend- 
ant cannot  afterwards  be  permitted  to  prove  by  parol  evidence 


'Tleaugli  V.  McConnel,  36  111.  ?,13 
2  Branner  «.  Chapman,  11  Kan.  118 
Heftner  v.  Gunz,  29  Minn.  108;  Cov 
ert  C.Clarke,  23  Minn.  539;  Lee?; 
O'Sliannessy,  20  Minn.  173 ;  Potomac 
Steamboat  Co.  v.  Clyde,  51  Md.  174 
Harris  v.  Hardeman,  14  How.  343 
Des  Moines  &  Minn.  R.  R.  Co.  v 
A\]oy,  103  U.  S.  794.     See  Nazoo  v 


Cragin,  3  Dill.  474;  Toland  v. 
Sprague,  12  Pet.  800. 

^  Williams  &  Bruce  v.  Stewart,  3 
Wis.  773. 

*  Everdell  v.  Sheboygan  «&c.  R.  R. 
Co.  41  Wis.  395. 

^Williams  v.  Williams,  61  Iowa, 
612. 

«Lorina;  v.  Wittich,  16  Fla,  617. 


GENERAL    APrEARANCE.  893 

tliathis  appearance  was  tlmsliiiiited.*  But  itmaybe  qualified Ly 
the  terms  of  an  application  to  the  court,  though  tliere  be  no 
express  rescrv^ation  confining  appearance  to  the  jDurpose  of  the 
application.  For  instance,  if  an  unserved  defendant  applies  to 
a  State  court  for  removal  of  a  cause  to  a  federal  court,  he  is  not 
to  be  deemed  as  assenting  to  the  jurisdiction  of  the  former, 
though  he  could  hardly  deny  it  in  the  latter  in  case  of  removal 
thitlier  on  his  own  application. ^ 

The  rule  is,  (applicable  to  attachment  as  well  as  other  suits,) 
that  a  general  appearance  waives  all  irregularities  that  are  not 
jurisdictional,'  and  it  waives  snch  jurisdictional  objections  as 
are  susceptible  of  being  waived:  such  as  that  of  non-residence. 
If  one  would  confine  himself  to  an  objection  of  that  character, 
though  jurisdictional,  he  must  make  a  special  appearance."* 
AVhen  the  defendant  comes  to  test  the  truth  of  the  affidavit,  he 
is  in  court  for  all  purposes.  ^ 

A  general,  voluntary,  unconditional  appearance  is  equal  to 
the  personal  service  and  return  of  summons.^  It  is  so,  even 
though  the  defendant  should  afterwards  withdraw  his  appear- 
ance, or  attempt  to  do  so;  for  the  effect  of  appearing  would  be 
the  giving  of  jurisdiction  over  him  as  a  personal  party,  so  that 
judgment  need  not  be  confined  in  its  operation  to  the  property 
attached.''  It  waives  defects  and  irregularities  of  the  previous 
proceedings.^      It  waives  all  objections  to  the  summons  andser- 

*  Collier  v.  Falk,  66  Ala.  223.  amended  by  inserting  the  name  of 

2  Schwab  V.  Mabley,  47  Mich.  512,  a  third  defendant.  He  voluntarily 
515;  a  case  inequity.  appeared;      and     when     judgment 

3  Hart  V.  Smith,  17  Fla.  767;  Co-  was  given  against  the  three  defend- 
hen  V.  Trowbridge,  6  Kan.  SS.');  ants,  the  sureties  were  held  bouud  by 
Shuster  v.  Finan,  19  Kan.  114;  Will-  the  undertaking  executed  before  the 
iams  •«.  Stewart,  H  Wis.  77;j.  amendment  of  the  summons.     Catliu 

*  Crowell  V.  Galloway,  3  Neb.  215;  v.  Ricketts,  91  N.  Y.  608. 

Varner  v.  Radcliff,  59  Ga.  448.  '  Creighton  v.  Kerr,  1  Col.  T.  509 ; 

*  Greenwell  v.  Greenwell,  26  Kan.      Blackwood  v.  Jones,  27  Wis.  498. 
530.  8  Carpenter  v.  Central  Park  &e-  R. 

6  Christal   v.  Kelly,  88    N.  Y.  285:  R.  Co.  11  Abb.  Pr.  (N.S.)410;  Brown 

Here,  after   two  defendants  had  ap-  v.  Balde,  3  Lans.  (N.  Y.)  283;    Will- 

peared  and  filed  a  plea  and  given  an  iams  &  Bruce  v.  Stuart,  3  Wis.  773; 

iindertaking,     the     summons      was  Greenwell  v.  Greenwell,  26  Kan.  5liU 


394         THE  DEBTOR  APPEARINO  AND  BONDING. 

vice,i  whether  the  general  appearance  is  personal  or  by  attorney.  2 
The  objection  to  an  attacliment  bond  which  had  but  one 
surety  though  the  statute  required  two,  was  held  to  have  been 
waived  by  the  defendant's  general  appearing,  answering  and 
bonding  of  the  attached  property. '  Bonding,  or  acknowledge- 
ment of  the  service  of  the  attachment  suit  authorizes  a  general 
judgment  against  the  defendant.*  Though  the  attachment 
should  be  subsequently  dissolved,  the  acknowledgement  of  ser- 
vice by  the  defendant  will  enable  the  plaintiff  to  prosecute  the 
personal  suit  to  judgment.^ 

The  defendant  himself  must  have  authorized  the  entry  of  his 
appearance,  or  it  will  be  of  no  avail.  Minutes  of  the  clerk  will  not 
be  held  to  include  a  person  not  cited  under  the  term  "defend- 
ants" when  there  are  such  in  court,  by  the  entry  that  they  had 
come  into  court  by  their  counsel  and  submitted  their  cause. « 
If  general  appearance  has  been  entered  by  mistake  or  fraud,  it 
may  be  set  aside.'''  If  a  teller,  cashier  or  other  minor  officer  or 
any  person  appears  for  a  corporation,  it  will  not  be  bound  unless 
he  was  previously  authorized,  or  his  action  afterwards  ratified.  ^ 

Sec.  3.    Withdrawal  of  Attorneys— its  Eflfeet  on  Previous 
Appearance. 

When  a  defendant  has  appeared  by  attorney,  he  cannot  put 

1  Halett  V.  Nugent,  71  Mo.  13;  Mechan.  Association  «.  Tompkins,  23 
Adams  Express  Co. -y.  Hill,  43  Ind.  Ind.  848;  Wiley  v.  Pratt,  Id.  628; 
157;  Womack  v.  McAliren,  9  Ind.  6;  Bush  v.  Bnsh,  46  Ind.  70;  Collins  v. 
Brayton  v.  Freese,  1  Ind.  121;  Bury  Rose,  59  Ind.  33. 

v.  Conkliu,  23  Kan.  460;  Baldwin  «.  ^  Bryant  v.  Hendee,  40  Mich.  543. 

3Iurphy,  82  111.  485;    (The  People  v.  *Buice  b.  Lowman  &c.  Co.  64  Ga. 

Baruet,  91  111.422;    The  People  «.  769. 

Bradley,    60     111.    390:      mandamus  Md. 

cases ;)  Bowen  v.  School  District,  10  "  Fee  v.  The  State,  ex  rel  Pleasant, 

Neb.  265 ;  Louisville  &c.  R.  R.  Co.  v.  74  Ind.  66. 

Nicholson,  60   Ind.  158;  Bradford  v.  ''  Allen  v.  Coates,  29  Minn.  46. 

Coit,  77  N.  C.  72.  «  Branch   Bank  v.  Poe,  1  Ala.  396; 

2  Pomeroy  v.  Ricketts,  27  Hun.  242;  Head  c.  Merrill,  34  Me.  586;  Oliver 
Everdell  v.  Sheboygan  R.  R.  Co.  41  v.  C.  &  A.  R.  R.  Co.  17  111.  587 ;  Cal- 
Wis.  395;  Rowland  v.  Coyne,  55  Cal.  lahan  v.  Hallowell,  2  Bay,  (S.  C.)  8; 
1;  (but  see  Douglass  «.  Habestro,  58  Bait.  &  Ohio  R.  R.  Co.  d.  Gallahue, 
How.  Pr.  276;)    Hall  «.   Palmer,   18  12  Gratt.  655. 

Ind.  5 ;    The  Floyd  County  Ag.  and 


WITHDRAWAL    OF    ATT0RNF:Y8.  395 

liimself  out  of  court  by  his  own  volition;  nor  will  the  with- 
drawal of  his  attorney  from  the  ease  have  the  effect  of  reliev- 
ino;  the  defendant  from  the  responsibility  as  a  party  which  the 
appearance  has  created.  If  the  attachment-debtor  has  not  been 
served;  if  he  has  not  been  notified  by  publication  npon  failure 
of  summons;  if  the  statute  requires,  upon  such  failure,  that 
there  must  be  not  only  advertisement  in  the  newspapers  but 
written  notice  mailed  to  the  debtor  beyond  the  State  bounds, 
and  these  requirements  have  been  neglected,  still  he  is  deemed 
to  be  in  court  if  an  attorney  has  appeared  generally  for  him. 
And  if,  before  plea  filed,  the  attorney  should  withdraw,  the 
defendant  will  be  in  court;  the  waiver  of  summons  and  notice 
and  ])ostal  communication  will  be  unaffected  by  the  withdrawal, 
and  he  will  be  lial)lc  to  default. 

The  effect  of  ii,eneral  appearance,  whether  by  the  debtor  in 
proper  person,  or  by  his  attorney,  is  to  render  the  suit  a  per- 
sonal one  with  the  attachment  proceeding  ancillary  thereto. 
The  Supreme  Court  say,  in  general  terms,  that  snch  appearance 
converts  "  into  a  personal  suit  that  which  was  before  a  proceed- 
ing ?'?i  rem.^''^ 

Express  mention  in  the  withdrawal  that  it  is  without  preju- 
dice to  the  phiintiii,  after  a  rule  to  plead  has  been  entered,  leaves 
the  plaintiff  in  possession  of  the  rights  acquired  by  the  appear- 
ance': hence,  should  the  rule  be  disregarded,  he  may  take  default 
against  the  defendant.^  "Without  such  expression,  the  defend- 
ant  could  be  defaulted    for   not   pleading.     Must   the   case   be 

*  Creigliton  v.  Ken',  20  "Wall.  8,  13.  requirements  had  been  disregarded. 
In  this  case  there  had  been  no  ^  Id.  The  court  were  deciding  a 
summons,  nor  publication  and  postal  case  in  which  the  withdrawal  of  the 
communication  in  default  thereof,  as  attorneys  was  expressly  "without 
required  by  the  territorial  statute  of  prejudice;  "  and  they  say:  "We  de- 
Colorado  where  the  case  arose.  At-  cide  the  case  upon  the  facts  present- 
torneys  appeared  for  the  debtor  but  ed,  and  nothing  would  be  gained  by 
withdrew  before  pleading.  Both  tlie  attempting  to  go  beyond  them." 
proceeding  in  rem  and  that  in  per-  There  can  be  no  doubt,  however, 
somim  were  evidently  dependent  that  the  omission  of  the  reservation 
upon  the  waiver  of  summons  and  wouldnot  affect  the  plaintiflf's  rights. 
notice.  Neither  could  have  resulted  The  attorneys  of  the  defendant  could 
in  valid  judgment  without  the  debt-  not  prejudice  the  plaintiff  by  their 
or's  appearance  when  the  statutory  withdrawal:  Dubois  v.  Glaub,  52   Pa. 

St.  238. 


396  THE  DEBTOR  APPEARING  AND  BONDING. 

delayed  because  the  defendant  1ms  no  attorney  in  court?  Must 
the  plaintiff  suffer  because  of  such  neglect  by  the  debtor  who 
is  now  a  party  to  the  suit?  Whether  the  withdrawal  of  the 
attorneys  who  have  appeared  for  him  in  court  be  "without  pre- 
judice to  the  plaintiff"  or  otherwise,  the   result  is  the   same. 

Under  such  circumstances,  the  judgment  may  be  for  more 
than  the  sum  claimed  in  the  affidavit  if  more  has  been  sued  for 
in  the  declaration,  (though  privilege  could  be  awarded  only  for 
the  amount  in  the  affidavit;)  and  the  reason  is  that  the  with- 
drawal of  the  attorneys  is  not  the  withdrawal  of  their  client 
who  remains  liable  to  have  a  personal  judgment  rendered  against 
him.i 

The  withdrawal  of  a  plea  does  not  leave  a  case  as  though 
there  had  never  been  any  pleading.  Its  filing  may  have  been 
the  defendant's  first  appearing  in  the  case.  Its  unconditional 
withdrawal  cannot  destroy  the  effect  of  that  appearance.  2  After 
general  appearance  by  attorney,  the  defendant  is  in  the  position 
he  would  liave  baen  if  persoTially  summoned.'  Special  appear- 
ance may  be  withdrawn  without  such  result.* 

Sec.  4.    The  Forthcoming  Bond. 

The  sheriff,  instead  of  I'etaining  the  attached  property  in  his 
actual  possession,  may  intrust  it  to  the  defendant,  taking  fi-om 
him  a  tbrthcoming  bond,  by  which  the  latter  binds  himself, 
with  one  or  more  sureties,  to  pay  a  certain  sum,  on  the  condi- 
tion that  if  he  shall  return  the  attached  property  to  the  sheriff 
for  execution,  in  case  judgment  shall  be  rendered  against  him, 
the  obligation  shall  be  void,  but  otherwise  to  remain  in  full 
force  and  effect.  On  such  a  bond,  after  failure  to  deliver  upon 
demand,  if  demand  is  required  by  tlie  terms,  or  on  failure  to 
deliver  for  execution  without  demand,  when  none  is  requisite, 
the  plaijitift",  upon  transfer  to  him  by  the  sheriff,  may  recover 

*  Creighton  v.  Kerr,  supra.  6   Blackf.    557;    Michew  v.  McCoy,  '6 

^Eldied    V.   Bnnk,    17  Wall.    551;  Watts  &  S.  501. 

Lawrence   v.    Ycatnran,  2   Scam.  17;  ^  Habich   v.  Folger,  20  Wall.  1,7; 

Rowley     v.     Berrian,     12     III.     198;  United  States  zj.  Yates,  6   How.  605; 

Thompson    v.   Turner,     22    III.    889.  Mnrray   v.  Vanderbilt,  39    Biirb,  140. 

S,!e    Dana    v.    Adams,    13    III.    691;  MVrio-ht  v.   Boynton,  37  N.    H.  9; 

Forbes  J).  Hyde,  31  Cal.  31G;  Canning-  See  Graham  v.  Spencer,  14  Fed.  Rep. 

Ham   V.  Goelet,  4  Denio,  71;  Lnt<,'s  r.  603;  Jones  i\  Andrews,  10  Wall.  327; 

Perkin.s   6  Mo.  57;  Wynn  v.  Wyatt,  AVright  v.  Andrews,  130  Mas!>.  149. 
11  Leigh,  584;  Lodge  v.  Slate  Dank, 


THE    FOIiTIICOMIxXG    BOND.  397 

of  the  principal,  or  of  the  surety,  the  value  of  the  ])r()p(:'i-ty, 
])r()vi(Ie(l  the  value  does  not  exceed  the  amount  of  the  judgment, 
interest  and  costs. 

The  sherilf,  by  entrusting  the  property  to  the  defendant  under 
Buch  bond,  does  not  lose  his  legal  possession  of  it.  The  defend- 
ant holds  under  the  sheriff,  so  that  the  7V.s'  is  still  in  the  con- 
structive possession  of  the  court.  The  ancillary  proceeding  in 
the  suit  does  not  abate  by  virtue  of  the  forthcomino-  bond,* 
which  would  inevitably  be  the  case  were  the  court  to  lose  its 
custody  and  jurisdiction  of  the  property,  and  the  defendant  to 
regain  unqualified  possession  of  it. 

However  difficult  it  would  be  to  follow  the  released  property 
through  several  successive  hands,  (should  it  be  repeatedly  sold,) 
to  vindicate  the  attachment  lien  upon  it,  it  is  well  settled  that 
the  lien  is  not  lost  by  the  delivery  of  attached  property  to  the 
defendant  under  a  forthcoming  bond.^ 

Here  is  the  marked  difference  between  the  forthcoming  bond 
and  the  bond  to  dissolve  attachment:  the  first  leaves  the  attach- 
ment intact,  but  the  second  dissolves  it,  and  reduces  the  suit  to 
a  personal  i:)roceeding;  the  obligation  of  the  forthcoming  bond 
is  to  return  the  property  for  execution,  while  that  of  the  disso- 
lution bond  is  to  pay  whatever  judgment  may  be  rendered. 
The  former  is  not,  but  the  latter  is,  a  substitute  for  the  attach- 
ment. 3 

The  forthcoming  bond  is  taken  by  the  sheriff,  as  his  ov\^n  offi- 
cial act,  and  the  obligation  of  the  principal  and  surety  on 
the  bond  is  usually  to  him.'*  The  taking  is  not  tlie  act  of  the 
court  or  of  the  plaintiff,  and  therefore  it  does  not  put 
the  property  beyond  the  legal  possession  of  the  court  so  as  to 
divest  jurisdiction  over  it  as  a  thing  atta<'hed.  On  the  other 
hand,  the  taking  of  the  bond  to  dissolve,  and  the  delivery  of  the 

1  Tyler  v.  Safford,  24  Kan.  580;  40  Ala.  225;  Rives  v.  Wilborne,  6 
Hiltou  V.  Ross,  9  Neb.  406.  Ala.  45;  McRae  v.  ISIcLean,  3  Porter, 

2  Roberts  v.  Duiin,  71  111.  46;  Scar-  (Ala.)  138;  Boyd  v.  Buckingham,  10 
borough  V.   Malone,    67    Ala.    570;  Humphreys,  (Tenn.)  434. 

Evans  «.  King,  7   Mo.  411;   Jones  «.  ^  Eddy  «.  Moore,  23  Kan  118;  Peo- 

Jones,  38  Mo.  429;    Gray  v.  Perkins,  pie  v.  Cameron,  7  111.  408. 

12   iSmedes   &    M.   622;    Gordon  v.  *  Forrest  v.   O'Donueil,   42   Mich. 

Johnston,  4  La.  304;  Kirk  v.  Morris,  556. 


398  THE  DEBTOR  APPEARING  AND  BONDING. 

property  to  the  defendant  pursuant  thereto,  destroys  tlie  plain- 
tiif's  lien,  divests  the  court  of  the  legal  and  even  of  the  con- 
structive possession  of  it;  and,  as  before  observed,  reduces  the 
whole  proceeding  to  a  personal  suit  against  the  defendant.  The 
debtor  is  necessarily  deemed  to  have  inade  an  appearance  and 
to  have  become  peroonally  amenable,  when  he  bonds.  If  he 
has  not  regularly  appeared  upon  the  record,  and  has  not  even 
been  summoned,  his  coming  to  bond,  even  by  attorney,  gives 
jurisdiction  over  him. 

A  form  prescribed  by  statute  ought  to  be  followed;  but  the 
obligors  cannot  avoid  their  obligation  because  some  other  verbi- 
age, not  inhibited,  has  been  used  in  drawing  the  bond.i  Cler- 
ical errors  will  not  invalidate  it,  if  they  are  not  such  as  to 
mislead  the  obligors,  or  such  as  to  render  the  terms  ambiguous 
and  unintelligible. 2  Though  signed  in  blank,  with  consent 
that  the  sheritf  may  fill  it  up,  the  bond  will  hold  good  if  writ- 
ten out  by  him  over  the  names  of  the  obligors,  in  the  terms 
assented  to,  and  pursuant  to  the  requirements  of  the  law,  and 
acknowledged  by  the  obligors.  ^  An  instrument  may  be  good 
as  a  common  law  bond,  though  not  written  in  the  terms  of  the 
attachment  statute.^  It  has  been  held,  however,  that  a  paper 
signed  in  blank  with  verbal  authority  to  fill  it  up,  is  void  when 
filled  by  the  person  so  authorized,  unless  the  signer  afterwards 
acknowledges  it.^ 

This  bond  is  a  special  contract,  authorized  by  statute,  which 
the  sherifi"  is  bound  to  accept  when  the  security  is  suflicient. 
The  consideration  of  the  contract  is  the  release  of  the  attached 
property; 6  its  delivery  to  the  defendant  for  him  to  hold  under 
the  sheriff. 

'Smith    V.    Fargo,    57    Cal.    157;  Wynne  ?).  Governor,   Id.   149;  Byers 

Sheppardv.    Collins,   13   Iowa,  570;  v.    McClauahan,   G    Gill    &    J.    250; 

Purcell  ».  Steele,  12   111.   93;  Curiae  Perminter  «.  McDaniel,  1  Hill,  267; 

V.  Packard,  29  Cal.  194.  Boyd  v.  Boyd,  2  N.  &  M.  125 ;  United 

2  Ilewesi;.  Cooper,  115  Mass.  42.  States  ».  Nelson,  2  Brock.   64;  Ayres 

3  Hill «.  Scales,  7  Yerg.  410;  Yo-  «.  Harness,  1  Ham.  368;  McKee  v. 
cum  V.  Barnes,  8  B.  Monroe,  (Ky.)  Hicks,  2  Dev.  379.  Contra:  Wiley 
496.  V.  Moor,  17  S.  &  R.  438. 

*Liglitle  V.  Berning,  15  Nev.   389.  ^  Liglitle  v.  Berning,  15  Nev.  389 

6  Gilbert  t).  Anthony,    1   Yerg.  69; 


THE    FORTHCOMING    BOND.  899 

Tlioiigli  tlie  bond  be  executed  iioiniually  to  the  sheriff  as  the 
obligee,  tlie  attacliing  creditor  is  the  real  party  interested;  and 
the  obligation  is  taken  with  the  implication  always  accompany- 
ing such  and  similar  nndertakings,  that  it  cannot  be  enforced 
against  the  defendant  and  his  sureties  if  they  are  prevented  in 
their  performance  of  the  stij)ulations  by  the  fault  of  the  ]tlain- 
titf  himself.  1  In  case  the  defendant,  after  judgment  against 
him,  should  fail  to  return  the  attached  property  to  the  shei'iff 
after  due  notice,  (when,  by  the  terms,  notice  is  necessary,)  the 
plaintiff  may  sue  upon  the  bond  upon  its  being  transferred  to 
him  by  the  sheriff.     He  is  therefore  the  real  obligee. 

The  defendant  has  the  right  of  bonding  the  attached  property 
upon  offering  proper  security.  The  sheriff  cannot  deny  him 
this  right;  and  therefore,  if  the  bond  is  good  when  taken,  the 
sheriff  will  not  be  responsible  if  it  should  afterwards  become 
bad.  Even  if  the  bonded  property  should  be  converte<l  by  the 
defendant,  or  by  him  and  his  surety,  and  thereafter  both  should 
become  insolvent,  the  sheritT  will  not  be  responsible.? 

After  a  bond  has  been  received,  the  sheriff  may  still  retain 
the  attached  property  until  the  sureties  have  justified,  or  until 
the  plaintiff  has  had  an  opportunity  to  test  their  solvency  and 
sufhciency  where  that  is  a  right  of  the  plaintiff;  at  least,  the 
property  may  be  retained  a  reasonable  time  for  this  purpose. ^ 

A  second  attacher  cannot  replevy.  The  sheriff"  would  be 
liable  for  delivery  to  him  so  that  the  property  should  not  be 
forthcoming  to  satisfy  the  lien  of  the  first  attacher. *  If  a 
second  attacher  has  succeeded  in  bonding  the  property,  he 
ought  to  be  treated  as  a  stranger;  and  a  forthcoming  bond,  or 
replevy,  by  a  stranger,  is  considered  as  in  behalf  of  the  defend- 
ant in  Alabama.  5 

The  term  "part-owner"  is  not  ordinarily  employed  as  syn- 
onymous with  "  partner."    Where  the  former  is  entitled  to  have 


»Downman  v.  Chinn,  2  Wash.  189;  bury  Button  Co.  15  Abb.  (N.  Y.)  Pr. 

Jaeger  c.  Stelting,  30  Ind.  341.  N.  S.  205. 

2  Wheeler    v.     McDill,     51    Wis.  *  Oordaman  ■».  Malone,  63  Ala.  570; 

85G.  Scarborougli  v.  Malone,  67  Ala.  570. 

^  In  New  York,   so  held   under  a  *  Kliodes  r.  Smith,   66    .Ala.    174; 

statute   provision:  Moses  v.  Water-  Ala.  Code,  g  3289. 


400  THE    DEBTOR    APPEAKING    AND    BONDING. 

attached  property  appraised,  and  delivered  to  him  on  bond,  after 
it  has  been  levied  upon  in  a  suit  against  another  part-owner,  it 
does  not  follow  that  a  partner  has  this  privilege.  ^ 

AVhen  the  obligation  of  the  bond  is  to  pay  a  stated  sum,  con- 
ditioned on  the  return  of  the  property,  the  principal  or  surety, 
on  failure  to  make  return,  may  be  made  to  pay  what  was  its 
value  at  the  time  of  the  execution  of  the  bond — not  what  the 
property  may  be  worth  after  the  judgment  or  at  the  time  when 
execution  sale  might  be  made.  The  value  may  be  agreed  upon, 
and  may  be  expressed  in  the  instrument.  It  may  be  ascertained 
by  appraisement  at  the  time  of  the  release.  It  may  be  ascer- 
tained by  the  court  ol'  a  jury. 

Should  the  defendant  bond  a  part.  «ef  his  attached  property, 
obligating  himself,  with  his  surety,  to  return  it  in  case  of  judg- 
ment against  him,  the  value  may  be  ascertained  in  like  manner, 
and  the  obligation  would  be  satisfied  upon  his  payment  for 
what  he  receives.  ^ 

The  obligation  is  to  produce  the  property  or  pay  the  sum 
stated  therein  to  the  amount  of  the  judgment;  not  to  pay  the 
amount  of  the  bond  when  it  exceeds  the  judgment,  nor  the 
value  of  the  property.  ^  "Where  the  obligors  are  liable  for  the 
value  of  the  property,  (as  they  must  be  when  the  judgment 
equals  or  exceeds  it,)  the  amount  is  ascertained  by  the  court 
and  jury,  and  is  nat  necessarily  what  was  fixed  by  the  appraisers 
when  the  bond  was  given.*  But  it  must  be  what  the  property 
was  then  worth.  ^ 

If  the  obligation  is  for  the  pui'pose  of  obtaining  actual  charge 
of  all  the  projterty  that  has  been  attached,  he  cannot  return  a  part 


»  Breck  v.  Blair,  129   Mass.  127,  in  Pro.;  Brumby  v.  Bernard,  60  Ga  292. 

which  it  is  said:    "If  we  assume,  as  ^  Schmidt -u.  Brown,   33    La.  Ann. 

is    stated    in  Pierce    v.  Jackson,    6  416;  Lemlei;.  Routon,  Id.  1005. 

Mass.  242,  that  a  creditor  of  one  part-  *  Fletcher  v.  Menken,  37  Ark.  200, 

ner  has  the  right  to  attach  the  part-  in  exposition  of  Gantt's  Ark.  Dig.  § 

nership  effects,  yet  we  are  of  opinion  406.     See  Allerton  v.   Eklridge,   56 

that  the  statute  was  not  intended  to  Iowa,  709,    in    exposition    of   Iowa 

apply  to  such  an  attachment."  Code,  §  2994. 

2  Ellsworth  V.  Scott,  3  Abb.  (N.  Y.)  ^  pyj-j.^  ^.  Post,  45  Ct.  354. 
N.  Gas.  9,  in  exposition  of  Code  Civ. 


THE    FOKTIICOMIXG    BOXD.  401 

and  pay  a  part.  It  is  no  compliance  with  the  terms  of  pucIi 
bond,  to  tender  the  return  of  a  part  of  the  property  that  had 
been  released  under  it. *  There  must  be  a  tender  or  delivery 
of  the.  M'holc;  and  the  return  of  it  must  be  ])romptly  made, 
upon  demand,  or  the  defendant,  will  lose  his  right  of  election. ^ 
However,  if  only  a  part  has  been  bonded,  the  return  of  that 
portion  would  satisfy  the  obligation.' 

The  main  object  of  the  bond  is  to  hold  the  surety.  The 
defendant  is  no  more  bound,  after  signing,  than  before.  The 
surety's  obligation  binds  him  to  pay  the  sum  nominated  in  the 
bond  to  the  amount  of  whatever  judgment  inay  be  rendered 
against  his  principal,  in  case  the  property  should  not  be  returned 
as  stipulated.*  When,"  in  the  instrument,  time  and  place  of 
return  are  stipulated,  notice  to  the  surety  is  unnecessary. ^ 
Unless  the  terms  of  the  bond,  or  of  the  statute,  warrant  judg- 
ment upon  mere  motion,  it  cannot  be  allowed  in  practice.^ 
The  surety  can  set  up  no  defense  to  the  judgment  rendered 
against  his  principal  which  the  principal  could  not  set  up.'' 
His  liability  is  from  the  moment  of  failure  to  return  on  demand 
under  Ji. /'a.^  But  he  is  liable  only  for  what  was  realized  by 
the  sale  of  the  property  by  the  defendant  on  account  of  its 
perishability.^ 

When  the  bond  is  given  to  the  plaintiff,  and  conditioned  that 
the  property  shall  be  returned  or  its  value  jf>i/rZ  to  him,  it  is 
not  a  mere  forthcoming  bond;  and  it  has  been  held  to  be  a 
substitute  for  the  attachment,  operating  the  loss  of  the  lien. 
Property  thus  released  may  be  sold  by  the  defendant,  subjected 
to  a  new  attachment  in  his  hands  by  another  creditor,  levied 

•  MetroTitch  v.   Jorovich,   58  Cal.  ^Hunter  v.  Brown,  68  Ind.  225. 
341,  in  exposition  of   Cal.   Code  of         ^  Clary  v.  Haines,   61   Ga.  520,   in 
Civil  Proc.  §  565.                                       exposition    of  Ga.    Code,   §§    3319, 

2  Goebel    o.   Stevenson,   35   Mich.      4033. 

172.  TMcClosky  v.   Wingfield,   32   La. 

3  Brumby  v.  Barnard,  60  Ga.  292.  Ann.  38. 

*  Stuart  i).  Lacoume,  30  La.  Ann.,  *  Stuart®.  Lacoume,  30  La.  Ann. 
Part  I,  157.     Higdon  v.  Vaughan,  58  Part  I,  157. 

Miss.  572.  »  Richards  v.  Craig,  8  Bax.  457. 

26 


402  THE    DEBTOR    APPEARING    AND    BONDING. 

upon  in     execution,  etc.,  just  as  tliougli   released  under  the 
usual  form  of  a  bond  to  dissolve.  ^ 

In  Georgia,  a  replevy  bond  is  not  a  fortlicoming  bond.  As 
prescribed  by  statute,  it  is  for  the  payment  of  money  and  not 
the  restitution  of  tlie  attached  property,  2  Much  confusion 
would  be  avoided  if  lawyers  and  judges  would  always  distin- 
guish between  forthcoming  and  dissohition  bonds,  and  never 
employ  the  term  "replevy  bond"  without  such  qualification  of 
that  more  general  designation  as  would  show  whether  the  obli- 
gation is  for  the  return  of  the  property  or  for  the  payment  of 
money,  either  as  the  value  of  the  bonded  property  or  as  satis- 
faction of  such  judgment  as  may  be  recovered.  When,  how- 
ever, the  defendant,  under  a  forthcoming  bond,  receives  funds 
deposited  in  court  by  a  garnishee,  the  effect  is  about  the  same 
as  receipt  under. a  dissolution  bond.^ 

Sec.  5.    The  Bond  to  Dissolve :   its  Effect. 

When  the  attachment  is  dissolved  by  the  giving  of  a  bond 
conditioned  upon  the  payment  of  whatever  judgment  may  be 
rendered  against  the  defendant,  the  lien  upon  the  property  thus 
released  is  removed.  The  suit  continues  then  as  a  personal 
action  only.  The  ancillary  or  attachment  proceeding  is  at  an 
end.* 

1  Jones  et  al.  v.  Peasley,  8  G.  Ross,  4  Serg.  &  R.  5r)7;  Wilson  » 
Greene,  (la.)  53,  in  exposition  of  stat.  Wilson's  Admr.  9  Id.  429;  Brenner 
authorizing  such  a  boud.  To  the  Trucks  &  Co.  v.  Moj-er,  98  Pa.  St 
same  effect:  Austin  &  Co. «.  Burgett,  274;  Parker  t>.  Farr,  2  Browne,  331 
10  Iowa,  303;  "Woodward  v.  Adams,  McCorabs  v.  Allen,  83  N.  Y.  114 
9  Iowa,  474.  Buckingham  v.  Swezy,  61  How.  Pr 

2  Clary  t).  Haines,  61  Ga.  520.  2(16;  Baxley  v.  Linah,  4  Harr.   241 
8  Henry  «.  Gold  Park  Mining  Co.       Scaulon  «.   O'Brien,  21   Minn.   434 

3  McCrary,  390,  in  exposition  of  Col.  Dieiolf  ?;.  AVinterlleld,  24  Wis.  143 

Code.  Monroe  1'.  Cutler,  9  Dana,  93;  Hazel 

*  Epstein  t).  Salorgue,  6  Mo.   App.  rigg -«.  Donaldson,  2   Met.  (Ky.)  445 

352;  Hills  D.  Mo  re,   40   Mich.   210;  Harper  t).  Bell,  2   Bibb,  221;  Inmaa 

Wolf  ■!).  Stix,  99    U.   8.  1;  Barry  v.  v.   Stratton,   4  Bush,  445;  Myers  v. 

Foyles,  1  Pet.  311;  Albany  City  Ins.  Smith,    39    Ohio  St.    120;   Eddy  «. 

Co.  V.  Whitney,  70  Pa.  248;  Marsh  v.  Morse,  23  Kan.  113;  Endress  v.  Ent, 

Pier,  4  Rawle,  289;  Duffy  &  Mehaf-  18  Id.  236;  People  v.  Cameron,  7  111. 

fyc.Lytle,   5   Watts,   132;  Fitch  v.  4G8;    Hill    v.   Harding,  93    111.   77; 


THE    BOND    TO    DISSOLVE ITS    EFFECT.  403 

It  is  tlie  defeiKlant''s  riy-lit  to  give  snoii  bond  \vitli  sufficient 
security,  and  thus  dissolve  tlie  attacliinent,  at  any  stage  of 
the  cause.  If  the  dissolution  of  an  attachment  is  the  object 
of  the  bond,  it  is  necessary  that  there  should  have  been  some 
property  attaclied,  since  otherwise  the  bond  would  be  voidable. 
It  is  true  that,  without  any  attachment,  the  debtor  might  volun- 
tariU'  execute  a  bond  with  security,  obligating  himself  to  tlie 
plaintiff  to  pay  whatever  judgment  might  be  rendered,  (as, 
indeed,  such  an  instrument  might  be  executed  in  any  personal 
action;)  but  the  defendant  would  not  be  bound  further  than  he 
M-as  before  the  execution  of  such  a  written  obligation,  and  the 
instrument  would  not  be  a  dissolution  bond.  It  might  hold 
good,  however,  against  both  the  principal  and  surety  as  a  com- 
inon-laAV  bond. 

Attaching,  when  the  debtor  is  summoned  or  voluntarily 
appears,  has  no  further  effect  than  to  enable  the  plaintiff  to  get 
a  privilege  judicially  recognized  upon  the  thing  attached,  retro- 
active to  the  time  of  seizure,  so  as  to  enable  him  to  make  his 
money  on  his  personal  judgment.  If  the  effect  of  the  dissolu- 
tion by  bonding  is  to  destroy  the  hypothetical  lien  created  by 
attaching  and  replace  it  with  security  for  the  debt  recoverable 
in  case  of  judgment,  the  suit  becomes  wholly  personal  by  rea- 
son of  the  dissolution,  and  is  like  an  ordinary  action  to  recover 
debt  of  a  principal  and  his  surety.  "When  the  attachment  is 
sued  out  in  an  action  separate  from  the  main  suit  which  it  is  meant 
to  aid,  and  is  dissolv^ed  by  bonding,  the  defendant  may  after- 
wards plead  in  bar  that  judgment  has  been  rendered  in  the 
principal  case.  1      There  would  be  two  actions  between  the  same 

Fife  V.  Clarke,  3  McCord,  (S.  C.)  nedy  ??.  Morrison,  31  Id.  207;  Dorr 
347;  Erwin  v.  Heath,  50  Miss.  795;  v.  Kershaw,  18  La.  57:  Bealv.  Alex- 
Philips  V.  Hines,  33  Miss.  163;  ander,  1  Rob.  (La)  277 ;  Benton  «.  Rob- 
Wharton  v.  Conger,  9  Sm.  &  M.  510;  erts,  2  La  Ann.  243;  McRae  v.  Austin, 
Ferguson  v.  Vance,  3  Lea,  90;  Gilli-  9  La.  Ann.  3G0;  Love  v.  Voorhies,  13 
epie  V.  Clark,  1  Tenn.  2;  Payne  v.  La.  Ann.  549;  Kendall  v.  Brown,  7 
Snell,  3  Mo.  409;  Morrison  v.  Alphin,  La.  Ann.  668;  Rathbone  v.  Ship  Lon- 
23  Ark.  136;  Childress  v.  Fowler,  9  don,  6  La.  Ann.  439. 
Id.  159 ;  Reynolds  ii.  Jordan,  19  Ga.  '  Brenner,  Trucks  &  Co.  v.  Moyer, 
436;  Irvine.  Howard,  37  Ga.  18;  98  Pa.  St.  274. 
Shirley  v.  Byrnes,  34  Tex.  625;  Ken- 


404  THE  DEBTOR  ArPEARING  AND  BONDI^'O. 

parties  on  tlie  saine  cause  of  action,  and  therefore  the  disposi- 
tion of  one  is  the  disposition  of  both.^  While  tlic  attachment 
suit  I'emains  intact,  tliere  is  no  inconsistency.  One  who  has 
sued  in  assumpsit  may  bring  an  attachment  suit  on  the  same 
canse  of  action,  because  the  latter  is  to  create  a  lien  to  aid  the 
former,  and  there  is  no  inconsistency.  ^ 

The  personal  suit  may  be  against  a  firm,  and  an  ancillary  one 
against  a  partner;  and  the  latter,  by  which  a  lien  is  acquired, 
(against  that  member's  interest,  if  the  attached  property  belongs 
to  the  firm,)  ought  not  be  dismissed  on  the  ground  that  no' 
lien  has  been  acquired  against  the  property  of  the  partnership. ^ 
AVlien  the  personal  suit  is  abated,  its  ancillary  falls  with  it;  but 
it  has  been  held  that  such  principal  action  against  an  insolvent 
debtor  "may  be  stayed,  yet  the  attachment  lien  be  enforced  by 
judgment  and  execution,  after  the  staying  of  the  personal  suit.'* 
It  is  ever^'where  true  that  the  personal  suit  does  not  end  by  the 
dissolution  of  the  attachment. ^  It  is  only  when  the  property 
action  is  the  only  one  that  dissolution  closes  the  litigation. 

Several  defendants,  each  claiming  separate  property  attached 
by  the  plaintiff  in  one  suit,  may  be  allowed  to  file  separate 
bonds,  each  obliging  himself  for  his  rightful  proportion  of  the 
plaintifi''s  demand  as  ascertained  by  the  court.  ^ 

When  the  defendant  has  had  his  attached  property  restored 
to  him,  upon  his  giving  bond  with  security  to  satisfy  whatever 
judgment  the  plaintifi"  may  recover  against  him,  there  is  no 
longer  any  attachment  lien  resting  on  the  property  thus 
released.''      If  the  court,  on  the  trial   of  an   attachment   suit, 

^  Wilson  V.  Wilson's  Admr.  9  S.  &  ^  Htiglies  v.  Tennison,  3  Tenn.  Ch. 

JX.  429;  Mai-sh  v.  Pier,  4  Rawle,  289;  641.    Contra:  Magee  v.  Callan,  4  Cr. 

Duffy  &  Mehaffy  v.  Lytle,  5   Watts,  C.  C.  251. 
132;'Baxley  «.  Linah,  4  Harr.  241.  ^  Hill     v.    Harding,     93    111.    77. 

^Swaitz*.  Lawrence,  12  Phila.  181;  Though  this   was  substantially  said 

Roberts  v.  Dunn,  71  HI.  46.  in  construction  of  a  statute  in  which 

*  Buckingham  «.  Swezy,  61   How.  it  is  provided  that  after  attachment 

(N.  Y.)  Pr.  266.  has  been  set  aside  upon   bond,  "the 

■*  Berryman  v.  Btern,  14  Nev.  415,  cause  shall  proceed  as  if  the  defend- 
in  exposition  of  1  Nev.  Comp.  L.  g  ant  had  been  seasonably  served  <  ilh 
434.  a  writ  of  summons,"  (Rev.  Stat.  1874. 

'  Hills  V.  Moore,  40  Mich.  210.  C.  11  §  14,)  yet  the   court's   reasons 


THE    BOND    TO    DISSOLVE ITS    EFFECT.  405 

after  a  release  upon  a  forthcoming  bond,  renders  a  personal 
judgment  against  the  defendant  without  recognizing  and  decree- 
ing expressly  or  impliedly  that  he  shall  have  a  privilege  on  the 
property  attached,  it  has  been  held  to  be  virtually  a  release  of 
the  property,  and  a  dismissal  of  the  attachment, ^  (though  in 
some  States  such  recognition  of  lien  and  privilege  is  under- 
stood;) but,  if  there  has  been  a  dissolution  bond  executed,  the 
judgment  must  necessarily  be  without  recugnition  of  lien  and 
privilege  and  without  reference  to  attached  property. ^ 

Therms  of  the  ancillary  action  disappears  by  the  bonding,  so  that 
no  iutervenor  could  thereafter  appear  in  the  case  to  claim  it.' 
"Whether  he  has  'djus  in  re  or  ajtis  ad  rem,  he  can  only  secure 
liis  rio-htbv  following  the  res  itself.  If  the  bond  is  a  substitute 
for  the  res  so  far  as  the  plain tili'  is  concerned,  it  is  not  so  with 
respect  to  a  third  party  claiming. 

This  subject  nuiy  be  elucidated  by  reference  to  libel  suits 
for  the  enforcement  of  liens  upon  property,  in  which  the  r^5 
itself  is  impleaded  and  in  which  there  is  no  personal  defend- 
ant: such  as  a  libel  against  a  ship  to  enforce  the  pre-existing 
lien  evidenced  by  a  bottomry  bond.  Any  person  may  appear, 
make  stipulation,  file  a  claim  for  the  ship,  and  apply  to  bond 
her.  If  the  court  grant  the  application,  the  bond  becomes  the 
substituted  7'e8  against  which  the  suit  is  further  prosecuted; 
and  this  is  true  in  all  cases  m  rem  where  there  is  no  personal 
defendant.'* 

The    claimxant   is  always  an    actor — not  the   sul)ject  of  the 

seem  to  be  of  general  application.  ry  ■».  McGee,  75  Ind.  508. 
It  is  said:  "the  character  of  the  suit  ^  Love  v.  Voorhies,  i;)  La.  Ann.  549. 
as  a  proceeding  t/i- ?"em  was  thereby,  'Gibson  «.  Wilson,  5  Ark.  423; 
[by  bonding,]  comple'ely  changed.  McRae  v.  Austin,  9  La.  Ann.  360: 
The  suit  thereupon  became  a  pro-  Monroe  «.  Cutter,  9  Dana,  9ii;  Ta^ylor 
ceeding  jM^erS(?;iam  as  completely  as  i;.  Tajior,  3  Bush,  118;  Dorr  t\  Ker- 
if  it  had  been  originally  commenced  shaw,  18  La.  57;  Mayberry  ®.  Stea- 
by  an  ordinary  summons,  and  no  at-  gall,  51  Tex.  351. 
tachment  had  even  been  sued  out;  *  Houseman  x.  Cargo  of  the 
and  the  qualified  lien  which  appel-  Schooner  North  Carolina,  15  Pet.  40; 
lees  [attaching  creditors,]  acquired  The  Virgin,  8  Pet.  538;  U.  S.  t). 
by  the  levy  of  the  attachment  was  Ames,  99  U.  S.  35;  The  C.  Y.  Acker- 
forever  gone."  man,  14  Blatchf  3G0;  The  Blanche 
1  Wasbou  V.  Cone,  8G  111.  46;  Low-  Page,  16  Id.  1. 


40G  THE    DEBTOR    APPEARING  '  AND    BONDING. 

action;  he  is  ratlier  a  plaintiff  than  a  defendant,  in  actions  in 
rem  of  the  character  mentioned.  Tlie  action  cannot  therefore 
become  a  personal  one  by  the  substitution  of  one  res  for 
another. 

In  attachment  snits,  on  the  contrary,  there  is  always  a  person 
sued  as  well  as  a  thing  attached;  and  therefore,  when  the  thing 
has  been  given  np  by  the  court  because  of  the  security  given  by 
the  personal  defendant  that  he  will  respond  to  the  judgment,  it 
becomes  more  simple  and  satisfactory  to  say  that  the  suit  goes 
on  to  the  end  as  one  in  personam,  than  to  say  that  there  is  yet 
a  res  in  the  substitute  given.  This  should  outweigh  argument 
drawn  from  the  analogy  suggested  by  the  practice  in  proceed-* 
ings  of  the  character  above  considered. 

The  garnishee,  though  he  has  answered  that  he  owes  the 
defendant  or  holds  his  property,  sliould  be  discharged  if  the 
defendant  appears  and  enters  into  bond,  with  security,  condi- 
tioned that  he  will  satisfy  whatever  jud'gment  may  be  rendered 
ao-ainst  him  in  the  suit.  There  would  be  no  motive  for  the 
giving  of  such  bond,  unless  the  defendant  thus  becomes  entitled 
to  the  dissolution  of  the  attachment,  the  restitution  of  his 
seized  projjerty  and  the  release  of  his  own  debtors  from  the 
effect  of  garnishment.  The  attaching  creditor,  being  perfectly 
secured  by  the  bond,  (the  worth  of  which  he  has  had  opportun- 
ity to  test,)  has  no  cause  to  complain  of  the  results  al)ove  men- 
tioned. '  The  bond,  or  undertaking,  is  to  him  a  substitute  for 
all  of  defendant's  property  or  credits  attached. 

A  garnishee,  after  the  bonding,  ought  to  be  discharged  before 
answering;  but,  whatever  his  aubwer,  he  should  be  discharged 
so  soon  as  a  motion  is  made  therefor  on  suggestion  of  the  bond- 
inir  as  the  p;round  of  the  motion.  ^ 

Sec.  6.    The  Bond  to  Dissolve:    Surety. 

It  is  said  to  be  a  voluntary  act,  on  the  part  of  the  defendant 
and  his  surety,  when  they  execute  a  bond  or  undertaking  to  pay 

1  Myers  I'.  Smith,  29  Ohio  St.  130;  by  bonding:    Henry  v.    Gold   Park 

Lecesne».  Cottin,  10 Martin,  (La.)  l"^-!.  ]\[iniug   Co.   3   McCraiy   C.  C.  31)0; 

Tlie  defendant  may  have  funds  paid  Col.  Code,  §  §  111,  113. 
into   court  by  a  garnishee  released 


THE    BOND    TO    DISSOLVE — SURETY.  407 

whatever  judgment  may  be  rendered  agninst  tlie  ilefeiidant. 
JBecuuse  of  the  voluntary  character  of  the  act,  and  of  its  obliga- 
tions arising  from  the  contract  tlnis  entered  into  between  tlie 
defendant  and  his  surety  on  the  one  part,  and  the  attaching 
creditor  on  the  other,  the  obligors  would  not  be  relieved  by 
every  circumstance  subsequently  occuring  which  might  liave 
rendered  the  attachment  itself  nugatory.  By  the  provisions  of 
the  national  bankrupt  act,  attachments  sued  out  Avithin  four 
months  prior  to  the  tiling  of  a  petition  in  banki-uptcy  were  dis- 
solved by  the  surrender; ^  but  if  dissolution  had  taken  place 
previously  by  bonding,  tlie  bankruptcy  proceeding  did  not 
relieve  the  surety  on  the  bond.  From  the  time  of  the  bonding, 
the  attachment  lien  was  at  an  end,  so  that  the  assignee  in  bank- 
ruptcy came  in  charge  of  the  property  freed  from  lien  by  the 
defendant's  act  and  not  by  the  provision  of  the  bankru])t  law.^ 
Though  the  surety's  obligation  is  contingent,  and  subordinate 
to  that  of  his  principal;  and  though  he  is  lx)und  to  pay  only  in 
case  the  plaintitf  recover  judgment  and  the  defendant  fail  to 
satisfy  it,  so  that  he  does  not,  by  signing  the  bond,  become 
immediately  and  separately  liable, ^  yet  his  obligation  is  to  pay 
the  debt  when  adjudged,  if  his  principal  should  not  do  so  and 
cannot  be  made  to  do  so.  Hence,  in  case  of  the  bankruptcy  of 
the  latter  after  the  ancillary  proceeding  has  been  ended  by  the 
bond  dissolving  it,  (and  alter  the  suit  has  become  altogether  a 
personal  one,)  the  surety  is  in  no  better  position  than  he  would 
be  if  bound  by  an  appeal  bond  to  pay  such  judgment  as  might 
be  rendered  in  an  appellate  court;  no  better  than  if  Iij  wei'e 
surety  on  a  promissory  note  and  his  principal  should  go  into 
bankruptcy.     The  discharge  of  the  principal   would    not  dis- 


-  "West  Phil  a.  Bank  u.  Dickson,  95  Boomer,   116   Mass.   527;    Cutler  v. 

U,  S.  180;    Morgan   v.   CfUiipbell,  23  Evans,    115   Mass.   27;    Hamilton®. 

Wall.  381;  :\niler   v.  Bowles,   5S  N.  Bryant,  114  Mass.  543;  Carpenter  v. 

Y.  253;    Risley   v.    Brown,  67   N.  Y.  Turrell,  100  Ma-s.  450;  Bates  v.  Tap- 

160;  Goodhue  «.  King,  55  Cal.  377.  pan,  99  Mass.  376;  Zollar  c.  Janvriu, 

MVolf^).  Stix,99U.  S.  1;  McCombs  49   N.    H.  114;    Colman   v.   Bean,   3 

«.  Allen,  83   N.    Y.  114;    Plolyoke  «.  Keyes,  94;    Parks  «.  Sheldon,  36   Ct. 

Adams,  59  N.  Y.  233;    Bildersee  v.  466. 

Aden,  13   Abb.  Pr.  (N.  S.)  334;    Cor-  ^ -vVelile  ?j.  Spellman,  75  N.  Y.  585 
nell  V.  Dakiu,  38  N.  Y.  253;  Braleyw, 


408  THE    DEliTOK    APrEARING    AND    BONDING. 

charge  the  surety.  The  case  is  altogetlier  different  from  tliat 
of  the  dissolution  of  an  attachment  for  iUcgality  in  its  issue,  its 
levy,  its  return,  etc.,  or  anything  rendering  the  proceeding  void 
and  the  hond  inoperative  against  the  pi-inci|)al  and  therefore  not 
binding  upon  the  surety  from  the  beginning. 

"When  the  incipient  lien  is  nipped  in  the  bud  by  the  dissolu- 
tion bond,  so  tliat  it  can  never  thereafter  come  to  maturity,  it 
cannot  be  resuscitated  by  tlie  court  upon  the  bond  becoming 
bad  thereafter  by  reason  of  the  surety's  failure  or  any  other 
cause.  A  new  attaclnnent,  in  such  case,  might  be  issued  for 
the  purpose  of  creating  a  new  lien,  where  there  is  statutory 
authority  therefor;  and,  without  a  new  attachment,  the  court, 
upon  a  rule  by  the  plaintiif  upon  the  defendant  to  show  cause 
why  other  security  should  not  be  given,  may,  (upon  statute 
authority,)  make  such  rule  absolute.  But  the  court  cannot  un- 
do what  has  been  done  by  a  previously  valid  bond;  cannot 
neutralize  the  effect  of  the  dissolution  in  restoring  the  attached 
property  to  the  defendant  free  from  lien.i 

When  the  worthlessness  of  the  bond,  by  i-eason  of  the  surety 
becoming  bankrupt  after  its  execution,  has  been  judicially  ascer- 
tained, the  plaintiff  has  no  equivalent  for  his  lost  lien;  and 
there  is  as  much  reason  for  allowing  him  to  create  another  as  there 
was  for  allowing  him  to  create  the  first.  He  ought  therefore 
to  be  permitted,  in  such  case,  to  make  a  new  affidavit  and  attach- 
ment bond,  and  have  a  new  writ  and  a  new  levy,  so  as  to  create 
another  incipient  lien  to  be  perfected  by  judgment,  taking  its 
date  from  the  time  of  the  new  levy,  even  without  express  statute 
authorization  beyond  the  general  provisions. 

The  bond  to  dissolve  is  given  by  the  defendant  and  his  surety 
on  the  assumption  that  the  attachment  is  valid;  and  the  plain- 
tiff, as  obligee,  receives  it  as  a  substitute  for  the  valid  attach- 
ment, knowing  that  tlie  contract  may  be  avoided  by  the  obligors 
should  it  prove  wanting  in  consideration.  There  would  be  ne 
reciprocity  if  the  plaintiff  should  get  his  claim  secured,  and 

1  Ferguson  «.  Vance,  3  Lea,  tTenn.)      Abb.    (K   Y.)   Pr.   4C0;     Dudley  v. 
90;    Stewart  v.   Dobbs,   39   Ga.   82;       Goodrich,  16  IIow.  (N.  Y.)  Pr.  189. 
Hartlord  Quarry  Co.  v.  Pendleton,  4 


THE    BOND    TO    DISSOLVE SUliETY. 


409 


give  up  only  an  illegal  attacliiiicMit — that  is,  give  up  iiotliirig  in 
return. 

AV^lien  lie  coines  to  sue  upon  the  bond,  the  (lelendant  and  his 
surety  may  set  up  the  illegality  of  the  attachment  in  det'ens«, 
except  with  regard 'to  matter  conceded  by  the  bonding;  they 
may,  under  proper  allegations,  inquire  into  the  afhdavit,  bond, 
\vrit,  return,  jurisdiction,  etc.;  and,  if  the  statute  under  which 
the  suit  was  brought  has  not  been  substantially  followed,  they 
may  succeed  in  avoidins^  the  obligations  of  the  bond.^ 

The  surety  upon  a  bond  given  by  the  defendant  to  dissolve 
an  attachment  takes  his  obligation  with  reference  to  the  cause 
as  it  then  stands;  and  should  the  plaintiff  afterwards  so  change 
his  pleadings  as  to  make  virtually  a  new  action,  how  can  it  be 
said  that  the  surety  would  have  obligated  himself  under  sucli  new 
order  of  things?  He  may  have  been  satisfied  that  the  plaintifi' 
could  not  recover  in  the  action,  and  may  therefore  have  been 
willingtogivethedefendantpresentrelief  by  signingas  his  bonds- 
man, though  he  would  not  have  signed  had  the  suit  been 
well  grounded. 

But,  notwithstanding  the  bonding,  the  plaintiff  may  amend 
without  relieving  the  defendant's  surety  from  any  obligation, 
if  he  does  not  change  the  character  of  the  action  by  introduc- 
ing new  counts  or  new  grounds.     It  is  not  just  to  the  surety 


»  Vose  V.  Cockroft,  44  N.  T.  415; 
Homan  v.  Briuckerhoff,  1  Denio,  184; 
Kanouse  v.  Dormedy,  3  Denio,  5G7; 
Matter  of  Faulkner,  4  Hill,  598; 
Caldwell  V.  Colgate,  7  Barb.  253; 
Bildersee  v.  Aden,  62  Id.  175 ;  Hodge 
V.  Norton,  22  Kan.  374;  Contra: 
Cruyt  V.  Phillips,  16  How.  (N.  Y.)  Pr. 
120,  (if  the  court's  jurisdiction  is 
independent  of  the  attachment.) 
Scanlon  v.  O'Brien,  21  Minn.  434, 
in  exposition  of  Minn.  Gen.  Stat.  Ch. 
65,  §  95.  Dunn  «.  Crocker,  22  Ind. 
324;  (see  Gass  v.  Williams,  46  Ind. 
253;)  Coleman  v.  Bean,  32  How.  Pr. 
370;  McMillan  v.  Dana,  18  Cal.  339; 
Bacon  v.  Daniels,  116  Mass.  474.  In 
Homan  v.  Brinckerhofl',  the  defend- 


ant, after  personal  judgment  against 
him,  was  sued  on  the  dissolution 
bond,  and  he  defended  by  pleading 
the  invalidity  of  the  attachment  by 
reason  of  the  absence  of  an  attach- 
ment bond.  The  court  held  that  by 
the  appearance  of  the  defendant  in 
the  attachment  suit,  the  court  had 
liad  jurisdiction  of  that  suit,  evident- 
ly meaningjurisdictiou  over  the  per- 
son of  the  defendant,  for  it  is  added: 
"That  will  not  aid  the  plaintiff;  he 
did  not  hold  the  property  under  the 
judgment.  *  *  *  He  had  no 
other  hold  on  the  property  than  such 
as  the  attachment  gave  him,  audttiat 
was  utterly  void  for  want  of  jurisdic- 
tion to  issue  it." 


410  THE  DEBTOR  APPEARING  AND  BONDING. 

tliat  lie  should  be  put  in  a  worse  condition  than  he  was  in  when 
he  signed,  by  any  amendment  that  would  strengthen  the  old 
grounds  or  make  the  plaintiff's  position  any  better,  and  the 
surety's  consequently  worse.  But  amendment  is  allowed  in 
practice;  and  even  if  new  counts  and  nefv  grounds  are  intro- 
duced, the  surety  will  be  liable  after  Unal  judgment,  if  the 
judgment  is  not  based  on  the  now  grounds  or  amended  counts.^ 

Sureties  are  not  discharged  by  an  amendment  of  the  sum- 
mons so  as  to  reach  a  third  defendant ;2  nor  by  an  amendment 
of  pleading  not  affecting  their  obligation ;3  nor  by  an  amend- 
ment of  one  count  of  a  declaration,  if  the  attachment  holds 
good  on  anotlier;*  but  an  amendment  increasing  the  demand 
would  discharge  them.^  The  bond  would  not  be,affected  by 
the  dismissal  of  one  of  the  defendants  to  the  suit.^ 

When  it  is  among  the  conditions  of  the  bond  that  in  case 
the  plaintiff  should  recover,  judgment  shall  be  entered  against 
the  surety  without  notice,  it  may  be  so  entered  though  the 
surety  be  a  non-resident.'' 

It  has  been  held  that  a  mistake  in  the  bond,  by  which  the 
writ  was  described  as  having  been  issued  from  the  Circuit  Court 
instead  of  the  District  Court,  cannot  avail  the  surety  so  as  to 
release  him  from  his  obligation. ^ 

If,  after  property  has  been  returned  to  the  defendant  by  rea- 
son of  the  giving  of  a  dissolution  bond,  the  result  of  the  con- 
tinuing personal  suit  should  be  a  judgment  for  the  defendant, 
there  can  be  no  shadow  of  obligation  remaining  against  either 
the  principal  or  the  surety  on  such  bond.  And  yet  an  effort 
was  made  to  hold  the  sureties  in  a  case  against  two  defendants — 
husband  and  wife.  The  property  belonging  to  the  latter,  she 
bonded  it:  and  thus  ended  the  proceeding  as  an  attachment 
suit.  The  case  went  on  as  a  personal  one,  and  the  judgment 
was  against  the  husband  but  in  favor  of  the  wife.     Upon  a  rule 

»  Cutter  v.  Richardson,  125   Mass.  =  Prince  v.  Clark,  127  Mass.   599; 

72;   Wood   d.   Denny,  7   Gray,   540;  Hill  «.  Hnnnewell,l  Pick.  192;  Wil- 

Mann  v.  Brewer,  7  Allen,  202.  lis  v.  Crocker,  Id.  204. 

2  Christal  v.  Kelly,  88  N.  Y.  285.  «  Poole  v.  Dyer,  123  Mass.  863. 

«  U.  S.  V.  INIosely,  7  Saw.  C.  C.  265.  ^  Kuhn  v.  Mc^Millan,  3  Dill.  372. 

*  Warren  v.  Lord,  131  Mass.  560.  ^  Ripley  v.  Gear,  58  Iowa,  460. 


THE    BOND    TO    DISSOLVE SURETY.  411 

to  liold  lier  sureties  liable  for  the  judgment  against  lier  husband, 
the  court  said  that  whether  it  was  irregular  practice,  or  not,  to 
lile  a  claim  in  an  action  in  jyci'sonam^  the  sureties  could  not  be 
held  beyond  the  terms  of  the  bond.i  This,  of  course;  but  why 
say  the  claim  was  in  a  personal  action?  It  was  in  the  attach- 
ment proceeding  against  the  attached  property  that  she  claimed 
and  bonded,  thus  reducing  the  case  to  a  personal  proceeding 
only.  The  right  to  claim  and  bond  was  as  regular  as  though 
the  proceeding  had  been  in  vindication  of  a  pre-existing  lien, 
such  as  that  created  by  a  bottomry  bond.^  "Astipulation  for 
value  can  be  substituted  for  property  in  custody,  at  any  time, 
by  order  of  court.  At  any  time  before  default,  property  in 
custody  may  be  bonded  in  pursuance  of  Sec.  911,  Kev.  Stat,  of 
U.  S.,  without  any  other  consideration  than  is  prescribed  by 
thac  section. "3  And,  in  attachments,  the  federal  courts  follow 
the  State  laws  with  respect  to  bonding,  when  the  U.  S.  statutes 
are  inapplicable,  as  in  the  practice  generally.  The  rule  is  that 
the  federal  courts,  sitting  in  any  State,  give  effect  to  its  attach- 
ment laws  as  construed  by  the  Supreme  Court  of  tliat  State, 
though  it  is  held  that  they  are  not  bound  to  follow  such  construc- 
tion.* 

The  further  discussion  of  the  bond  to  dissolve  is  relegated  to 
the  chapter  on  the  dissolution  of  attachment. 


'  Jay  cox  V.  Chapman,  10  Ben.  517.       196. 

2  The  Archer,  10  Ben.  99.  *  Lehman  v.  Berclin.  5  Dillon,   340, 

^  Th:7  Martha  C.  Buinite,  10   Ben.       and  cases  cited  pp.  325-6. 


412 


DISSOLUTION    OF    ATTACHMENT. 


CHAPTER     XIll. 


DISSOLUTION    OF    ATTACHMENT. 


1.  The  Motion  to  Quash. 

2.  Qutishing  for  Errors  Patent. 

3.  Quashing  on  Evidence  beyond 

the  Record. 


§  4.     Traverse  after  Dissolution  by 
Bonding. 
5.     Dissolution    by    Final    Judg- 
ment for  Defendant. 


Sec.  1.    The  Motion  to  Quash. 

Since  a  court  which  has  authorizedly  granted  an  attachment 
has  the  inlierent  power  of  controlling  its  own  process,  it  is 
competent  to  entertain  a  motion  to  quash  it.i  The  application 
need  not  necessarily  be  made  to  the  judge  who  granted  the 
writ. 2  It  may  be  made  to  a  judge  at  chambers,  in  some  States^ 
though  it  is  usual  to  move  in  open  court. 

Vacating  an  attachment  is  a  judicial  act,  and  one  of  such 
character  that  it  cannot  be  entrusted  to  the  ministerial  officer 
who  issued  the  writ.* 

The  merits  of  the  principal  cause  are  not  involved  in  a  rule 
to  dissolve  the  attachment,  ^      The  rule,  when  founded  on   the 


» Phillips?).  Welch,  11  Nev.  187; 
Furman  v.  Walter,  13  How.  Pr.  348; 
Bank  of  Commerce  'o.  Rutland  &c. 
R.  R.  Co.  19  Id.  1;  Morgan  v.  Avery, 
7  Barb.  65G;  Gay  v.  Eaton,  27  La. 
Ann.  166. 

2  Ruppert  V.  Haug,  87  N.  Y.  141 ; 
S.  C.  62  How.  Pr,  314.  See  Conklin 
V.  Dutcher,  5,  How.  Pr.  386;  White 
V.  Featherstonhaugh,  7  Id.  357;  Bank 
of  Lansingburgh  v.  McKie,  Id.  360. 

8  Cureton  v.  Dargan,  12  S.  C.  122; 
Wells  V.  Danford,  28  Kan.  487; 
Shedd  V.  McConnell,  18  Kan. 
594.  But  it  was  held  that  the  rule 
could  not  be  heard  and  determined 


in  chambers.  Cohn  v.  Justice,  1 
Kan.  220. 

*  Matter  of  Marty,  3  Barb.  229; 
but  there  is  an  exception  mentioned 
in  this  case,  under  the  N.  Y.  practice 
existing  when  it  was  rendered.  In 
Michigan,  application  is  made  to 
Circuit  Court  commissioners.  Patter- 
son V.  Goodrich,  31  Mich.  225 ;  Vin- 
ton  V.  Mead,  17  Id.  388;  Albertson  v. 
Edsall,  16  Id.  20S;  Nelson  v.  Hyde, 
10  Id.  521;  Edgartou  v.  Hinchman, 
7  Id.  852. 

^  Hermann  v.  Amedee,  30  La.  Ann. 
393;  Olmstead  v.  Rivers,  9  Neb. 
234. 


THE    MOTION    TO    QUASH.  413 

papers  upon  which  tlie  writ  was  issued,  cannot  he  defeated  hy 
the  plaintiflf's  introduction  of  new  evidence  to  sustain  his 
grounds.!  He  must  stand  or  fall  upon  the  platform  which  he 
has  previously  raised.  The  merits,  can  only  be  investigated 
under  sucli  a  rule  when  the  statute  directly  or  impliedly  requires 
it.  If  the  judge,  to  dissolve  an  attachment,  must  be  satisfied 
that  there  was  no  good  cause  for  issuing  it,  he  would  necessarily 
have  to  investigate  the  merits. ^  An  attachment  may  be  dis- 
solved as  to  a  part  of  the  property  attached,  in  which  case  the 
order  should  designate  what  part  is  released.  3 

The  motion  is  made  by  the  defendant  whose  property  has 
been  attached.  If  tl^ere  are  no  other  parties  in  the  case  but 
the  2:>laintifF  and  the  defendant,  and  no  other  person  directly 
interested,  the  right  of  applying  for  the  vacation  of  the  attach- 
ment is  confined  to  the  defendant.^  He  has  this  right  by  rea- 
son of  his  ownership  and  the  interest  which  he  has  in  having 
the  property  released,  Cjle  should  have  either  ownership 
or  the  right  of  possession. ^  ;The  right  of  possession,  without 
ownership,  M'ould  entitle  liim  to  make  the  motion;  and  he 
should  allege  this  right  in  his  application. ^  He  should  verify 
his  allegations,  when  the  practice  of  his  state  requires  it;'' 
but  if  he  has  filed  a  sworn  answer  that  may  be  used  as  his 
affidavit  on  motion  to  dissolve  where  the  motion  may  be  leo-jilly 
made'  thereafter.  ^ 

The  defendant  cannot  be  heard  for  the  purpose  of  having  the 
attachment  dissolved  if  he  has  assigned  the  property  ;9  nor  if 
the  property  is  under  execution  of  a  judgment  against  him;!" 

1  Steuben  Co.  Bank  v.  Alberger,  56  Ivetchura  v.  Ketchum,  1  Abb.  Pr.  IST. 

How.  (N.  Y.)  Pr.  345.  S.  157;   Kiucaid  v.  Neal,    3  McCord, 

2Folsom«.  Teicbner,27Mich.  107,  (S.  C.)    201;    McBride    v.    Floyd,    2 

in  exposition  of  Compiled  Laws,  §  §  Bailey,  (S.  C.)  209. 

6128-31,    (1871)    relative   to    aUach-  ^  ^nok  v.  Blougb,  42  Micb.  487. 

ments  dissolved   by   commissioners,  ®  Johnson -y.  De Witt,  36   Mich.  95; 

etc.  Patterson  v.  Goodrich,  31  Id.  225. 

3  Ellsworth  V.    Scott,  3   Abb.   New  '  Osborne    v.    Kobbins,   10    Mich. 

Cases,  9.  377. 

♦  Cockrell  v.  McGraw,  33  Ala.  526 ;  »  Nelson  v.  Murch,  28   Minn.  229. 

Schoppenhast  v.    Bollman,   21    Ind.  »  Q],^,^(]igr  ^j.  Nash,  5  Mich.  409. 

280;  Williams  v.  Walker,  11    Iowa,  "Johnson   r.  DeWitt,  36  Mich.  95. 
77;  Isham  t\  K«>*chum,  46  Barb.  43; 


414  DISSOLUTION    OF    ATTACHMENT. 

nor  if  he  lias  no  rightful  claim  to  the  possession  ;i  nor  if  he 
has  no  title ;2  but  a  partner  in  property  may  be  entitled  to  the 
restoration. ' 

The  surety  on  a  forthcoming  bond  is  so  far  a  party  to  the 
proceeding  that  there  may  ultimately  be  a  judgment  against 
him  in  the  case  and  he  is  certainly  interested  in  the  pro})erty 
attached  so  far  as  to  be  responsible  for  its  restoration  upon  judg- 
ment being  rendered  against  his  principal.  He  has  therefore 
been  held  competent  to  move  for  the  vacation  of  the  attach- 
ment.'* The  surety  on  a  dissolution  bond  has  succeeded  in 
arresting  a  judgment,  on  the  ground  that  the  attachment  was 
void  for  fatal,  patent  defects,  after  a  prev^ious  motion  to  arrest, 
made  by  his  principal,  had  been  overruled.  ^ 

If  there  are  other  parties  in  the  case,  interested  in  having 
the  attachment  dissolved,  any  one  of  them  may  move  to  quash; 
but  it  is  essential  to  the  right  of  any  one  to  move  that  he  be  inter- 
ested in  setting  the  attachment  aside.  ^  "Where,  in  the  practice 
of  some  of  the  States,  claimants  other  than  the  defendant,  and 
interveners,  are  allowed  to  appear,  their  right  to  apply  for  the 
vacation  of  the  attachment  depends  upon  the  interest  which 
they  establish  in  themselves,  with  right  of  possession;  and  if, 
upon  a  change  in  the  plaintiff's  pleadings,  such  right  and  inter- 
est become  no  longer  involved,  they  cannot  be  heard  to  make 
the  motion.'^ 

The  assignee  of  attached  property  is  interested  in  having  it 

released,  and  he  may  therefore  appear  and  make  application  for 

,  that  purpose.^     Even  if  he  has  received  an  assignment  of  only 

a  part  of  the  property,  he  may  move  to  quash  with  reference  to 

such  part. 9     An  assignment  by  a  non-resident  debtor  will  not 

1  Price  V.  Reed,  20  Mich.  73.  v.  Smith,  93  N.  Y.  87. 

2  Mitchell  ®.  Skiuner,  17  Kan.  563.  ^  Meudes  v.  Freiters,   16  Nev.  388. 

3  Edwards  ■».  Hughes,  20  Mich.  289.  »  Baum  ■?>.   Raphael,  57    Cal.    3G1 ; 
*  Burch  V.  Watts,  37  Tex.  135.  Shoe  &  Leather  Bank  v.   Mechanics 

5  Neal  v.  Gordon,  60  Ga.  112.  Bank,  89  N.  Y.  440. 

6  Long  ■».  Murphy,  27  Kan.  375 ;  ^  Trow's  Printing  and  Book-hind- 
Mitchell  V.  Skinner,  17  Id.  563;  ing  Co.  «.  Hart,  85  N.  Y.  500;  S.  C.  9 
Capehart  V.  Dowery,  10  W.  Va.  130;  Daily,  413;  Moses  v.  Arnold,  43 
Sims  ®.  JacobsoD,  51  Ala.   186;   Tim  Iowa,  187. 


THE    MOTION    TO    QUASH.  415 

dissolve  a  previous  attachment. ^  The  lien  is  not  lust  by  insol- 
vency proceedings  in  Illinois. ^ 

A  niortgao-ee  or  other  lien  holder,  being  ])rotected  otherwise, 
has  not  such  interest  in  the  attachment  proceeding  instituted  by 
another  creditor  as  to  render  him  competent  to  appear  and  move 
to  quash  the  attachment.  ^ 

Garnishees,  mIio  are  not,  in  the  full  sense,  parties  to  the  suit 
between  the  plaintitf  and  defendant,  and  even  interested  strangers 
■who  have  made  tlicMiiselves  intervening  parties  to  protect  their 
rights,  have  been  allowed  to  make  the  motion  to  dissolve,  under 
the  practice  in  souic  of  the  States ;4  and  subsequently  attach- 
ing creditors  have  been  allowed  to  intervene,  set  up  their  rights, 
and  move  to  quash  the  first  attachment.  ^ 

In  order  to  entitle  an  intervener  to  make  such  motion,  his 
interest  must  be  direct; — at  least,  not  too  remote.  A  judgment 
creditor  in  another  suit  cannot  be  heard  to  move  the  vacation 
of  attachment  on  the  ground  that  it  is  an  obstruction  to  his 
execution;  though  he  may,  it  seems,  on  the  ground  that  the 
attachment  is  a  clor.d  upon  his  title.  ^ 

The  judge,  though  necessarily  disinterested  in  the  issue  of 
the  suit,  may  qnask  an  attachment  without  motion,  when  there 
are  causes  afiecHng  his  jurisdiction,  as  when  there  is  no  affida- 
vit at  all,  or  one  radically,  incurably  and  fatally  defective  on  its 
face,  or  like  reason;  or,  he  may  do  so  on  motion  by  an  amicus 
curia. '' 

The  plaintiff,  as  a  matter  of  course,  may  release  the  attach- 
ment at  any  time;  and  his  attorney  may  do  so  by  virtue  of  his 
general  authority  as  attorney. ^ 

>  Pierce  v.  Crompton,  1?,  R.  I.  312.  »  gaird  v.  Williams,  19   Picl<.  381; 

2  Life  Ass'n.  of  Auieiica  i\  Fas-  Smilli  «.  Davis,  29  Hun.  301;  Tim 
sett,  102  111.  315.  V.  Smith,  93  N.  Y.  Ruppert  v.  Haug, 

3  May   V.   Courtuay,   47   Ala.   185;  87  Id.  141. 

Cockrell  v.  McGraw,  33  Id.  520.  «  Steuben  Co.   Bank  v.   Alberger, 

*Cha^e  V.    Foster,    9  Iowa,    429;  S3  N.  Y.   274;  S.  C.    Gl    How.   Pr. 

Baird  v.   Williams,    19    Pick.    381;  227. 

Pierce  v.  Richardson,  9  Met.   (Mass.)  ">  E.x  parte  R.  R.  Co.  103  U.  S.  794; 

69;  Henderson  ?j.  Thornton,  37  Miss.  Planters'    and    Merchants'   Bank  v. 

448 ;   Pendleton  v.  Smith,   1  W.  Va.  Andrews,  8  Porter,  (Ala.)  404. 

16;  Clarke  v.  Meixsell,  29  Md.   221.  ^  Benson  v.  Carr,  73  Me.  76. 


416 


DISSOLUTION    OF    ATTACHMENT. 


There  can  be  no  motion  to  quash  till  appearance  in  the  cause, 
cither  general  or  special — a  matter  of  course.  There  can  be 
none  for  patent  errors  after  issue  joined  upon  the  merits, 
under  the  practice  in  several  States.^  This  practice,  however, 
is  not  universal.  3  And  the  defendant  does  not  waive  his 
traverse  of  the  plaintiff's  affidavit  by  pleading  to  the  merits  of 
the  main  action;  the  two  defenses  are  not  inconsistent:  the 
former  going  to  the  writ  and  the  latter  to  the  declaration. * 

The  motion  ouglit  to  be  made  at  the  first  term  of  court  after 
the  defendant's  appearance,*  though  this  rule  is  not  invariable. ^ 

The  application  should  be  certain  with  regard  to  the  property 
sought  to  be  released.  Such  certainty  would  not  require  a  full 
description  of  the  property  attached,  wdien  the  motion  is  made 
in  the  attachment  suit,  and  when  reference  to  it  would  neces- 
sarily be  understood;  but  if  there  is  a  separate  proceeding  for 
dissolution,  (as  authorized  under  some  circumstances,)  there 
/Bhould  be  an  unmistakable  description  of  the  property.  ^  The 
applicant  should  allege  his  ownership  or  right  of  possession.' 
The  motion  should  bear  the  title  of  the  suit  in  which  it  is  made; 
but  that  has  been  held  unnecessary  when  there  is  an  application 


'  Myers  «.  Perry,  1  La.  Ann.  373; 
Brinegar  v.  Griffin,  2  Id.  154;  Ealer 
V.  McAllister,  14  Id.  821;  Reynolds 
V.  Simpkins,  67  Ala.  378;  Steamboat 
Farmer  v.  McCraw,  31  Ala.  659; 
Porter  «.  Pico,  55  Cal.  165;  Grey  «. 
Young,  Harp.  (S.  C.)  38;  Spaulding 
V.  Simms,  4  Met.  (Ky.)  285;  Callen- 
der  V.  Duncan,  2  Bailey,  (S.  C.)  454i 
Paddock  v.  Matthews,  3  Mich.  18; 
Dunn  V.  Crocker,  22  Ind.  324. 

2  Parsons  v.  Sprague,  65  How.  Pr. 
151;  Binns  v.  Williams,  4  McLean, 
580;  Thompson  ■«.  Culver,  38  Barb. 
442;  Zeregal  v.  Benoist,  33  How.  Pr. 
129;  Bowen  D.  Bank  of  Medina,  34 
Id.  408.  (See  Spencer  v.  Rogers  Lo- 
comotive Works,  13  Abb.  Pr.  180; 
Whiteside «.  Oakman,  1  Dall.  294; 
Jarvis  v.  Barrett,  14  Wis.  5.01.) 

8  Parker  v  Brady,  56  Ga.  372. 


*  Irvin  V.  Howard,  37  Ga.  18;  Neal 
V.  Bookout,  30  Id.  40;  Hall  v.  Brazel- 
ton,  40  Ala.  406;  Lawrence  v.  Jones, 
15  Abb.  Pr.  110;  Sweezey  v.  Bart- 
lett,  3  Abb.  Pr.  N.  S.  444;  Milten- 
bergertj.  Lloyd,  2  Dall.  79. 

^Tarbell  v.  Bradley,  27  Vt.  535; 
Wilson  V.  Louis  Couk  Manuf.  Co.  88 
N.  C.  5;  Penman  v.  Gardner,  4 
Yeates,  6;  Kearney  v.  McCullough, 
5  Binn.  389.  In  Tennessee,  held 
that  it  must  be  made  within  twelve 
months:  Bledsoe  v.  Wright,  58 
Teun.  471. 

*  As  in  Michigan,  before  a  Circuit 
Court  Commissioner:  Patterson  v. 
Goodrich,  31  Mich.  225;  Nelson  v. 
Hyde,  10  Id.  521. 

'  Johnson  v.  De  Witt,  36  Mich.  95; 
Patterson  v.  Goodrich,  31  Id.  2'25. 


QUASHING    FOR    ERRORS    PATENT.  417 

for  dissolution  in  a  separate  proceeding. *  In  tlie  latter  case, 
the  application  should  be  verified  by  oath.^ 

The  most  important  requisite,  (without  Mdiich  the  motion  or 
application  would  be  futile,)  is  the  assignment  of  the  reasons 
for  quashing. 3  The  irregularities  apparent  oh  the  face  of  the 
proceedings  should  be  specified.  They  are  usually  defects  in 
the  petition,  the  service,  the  affidavit,  the  bond,  the  writ,  the 
levy,  the  return,  or  the  publication. 

It  is  not  always  necessary  that  special  notice  should  be  given 
to  the  plaintiff  of  a  motion  to  dissolve.  He  is  constructivelj' 
in  court,  if  not  actually  present,  and  is,  under  the  practice 
extensively  prevailing,  presumed  to  know  what  is  done  in  the 
cause  he  has  instituted.  But  when  the  defendant  has  taken  a 
rule  on  the  plaiiitiff  to  show  cause  why  attachment  should  not 
be  quashed  on  the  grounds  assigned,  tiie  rule  mnst  be  served. 
For  some  purposes,  such  as  the  release  of  exempt  property, 
notice  is  indispensable.* 

Sec.  2.    Quashing  for  Errors  Patent. 

When  the  attachment  proceeding  is  radically  defective  upon 
its  face  and  when  the  writ  has  been  unwarrantably  issued,  the 
proper  remedy,  and  the  one  employed  in  most  of  the  States,  is 
the  motion  to  quash  for  the  errors  thus  apparent. ^  There  are, 
however,  in  some  States,  other  means  than  this  method  of  pro- 


»  Heyn  v.  Farrar,  36  Mich.  258.  Brown,  Id.  668;  Bonner  v.  Brown,  10 

2  Osborne  ©.Bobbins,  10  Mich.  277.  Id.  334;  Hill  v.  Cunningham,  25  Tex. 

8  Osborne  ».  Bobbins,  10  Mich.  277;  25;  Wrights.    Smith,  19  Tex.   297; 

Freeborn  v.  Glazer,  10  Cal.  337.  Messner  v.  Lewis,  20  Tex.  221 ;  Espey 

*  Ciaflin  V.  Lisso,  31  La.  Ann.  171.  t).  Heidenheimer,  58  Tex.6G2;  Lamb- 

5  Anderson    v.  Johnson,  32  Gratt.  den  i).  Bowie,  2  Md.  334;  Gasheriea. 

558;  Harrison  ■;;.  King,   9    Ohio   St.  A])ple,  14  Abb.   Pr.   64;    Brewer  v. 

388;    Cooper  v.  Beeves,  13  Ind.  53;  Tucker,  13  Id.  76;  Dickinson  v.  Beu- 

Pittman  v.    Searcey,   8    Iowa,  352;  ham,  12  Id.  158;  Morgan  «.  Avery,  7 

llolloway  V.   Herrylbrd,  9  Id.  3"1;  Barb.  656;  (but  see  Boscher  «.  Boul- 

Bower  v.  Town,  12  Mich.  230;  Cow-  Her,  4  Abb.  Pr.  396 ;)  Hill  v.  Bond,  22 

ard  V.  Dillinger,  56   Md.  59;  Harper  How.  Pr.  272;  Baldwin  v.  Cooper,  17 

t).    Scuddy,    1  McMull,  (S.   C.)  ZGi;  Miss.  516;   Rice  j;.  Thornton,  69  Ala. 

Bead  v.  Ware,  2  La.  Ann.  498;  Slark  473. 

V.    Broom,  7    Id.    337;    Kendall    v. 

27 


418  DISSOLUTION    OF    ATTACHMENT. 

cednre,  when    tlie   attacliinent  lias  been  illegally  issued  or  is 
defective.^ 

When  the  personal  suit  is  radically  defective,  or  not  such  as 
to  form  the  basis  of  an  attachment  according  to  statute  provis- 
ions, the  anc'llary  proccedino;;  must  fall  v^'ith  it. 2  Of  course, 
should  an  exception  or  demurrer  to  such  princijial  action  be 
successfully  pleaded,  the  subsidiaiy  proceeding  would  be  at  an 
end,  without  any  occasion  for  a  motion  to  quash  it.  Still,  in 
case  the  defendant  has  made  only  a  special  appearance,  and  pre- 
fers the  motion  to  quash  upon  assigning  patent  errors,  rather 
than  pleading  in  the  principal  action,  he  may,  under  such  motion, 
set  up  that  the  attachment  was  not  sued  out  under  such  suit  as 
the  statute  requires  as  a  foundation  for  attachment.  If,  for 
instance,  the  suit  is  on  a  l)ill  of  exchange,  and  it  appears  by  the 
petition  itself  that  the  plaintiff's  title  to  the  bill  was  not  com- 
plete when  tlie  suit  was  instituted,  attachment  thereunder  may 
be  quashed  upon  such  motion.  ^  If  the  cause  of  action  is 
founded  on  a  sealed  instrument  yet  the  declaration  is  in  trespass 
on  the  case,  attachment  sued  out  under  such  suit,  being  without 
statute  authorization,  may  be  quashed  in  like  manner.'*  So 
also,  if  attachment  has  been  sued  out  in  any  suit  in  which  this 
remedy  is  not  authorized  l)y  statute. ^  Courts  njay  inquire  into 
the  allegations  of  the  ])rincipal  action  when  hearing  a  motion 
to  dissolve  attachment;^  but  the  debt  cannot  be  summarily  dis- 
proved for  the  purpose  of  having  the  attachment  dissolved.'" 

The  summons  should  be  such  as  to  give  the  debtor  the  infor- 
mation necessary  to  put  him  upon  inquiry;  should  communicate 
to  him  knowledge  of  the  institution  of  the  suit,  of  the  court  in 
which  it  is  instituted,  and  the  essentials  tending  to  put  him  upon 
his   defence.     When  a  copy   of  the   petition    accompanies  the 

J  Meiise  V.  Osbern,  5  Mo.  554;  .Jor-  *  TeiiBrock  v.  Pendleton,  SCranch. 

dan  v.  Hazard,  10   Ala.  221;    Gill  v.  C  C.  404. 

Downs,  2G  Id.  (570 ;  Evans  v.  Andrews,  *  Stone  v.  Boone,  24  Kan.  337  ;  Rid-- 

7  Jones,  (N.  C.)  L.  117;  Clienyi).  Nel-  die  v.  IJlack,  99  Pa.  St.  380;  Elliott  v. 

son,  Id.  141;    Relss  r.  Brady,  2  Cal.  Jackson,   8    Wis.  049;    Griswold   «. 

133.  Sharpe,  2  Ca'..  17. 

2  Qninland  v.  Danford,  28  Kan.  507.  ^  IJundrem  v.  Deiui,  25  Kan.  430. 

*  Blancliard  t).  Grousset,  1  La.  Ann.  'Fisher   v.   Hood,  2  Martin,  (La.) 

96.  113. 


QUASHING    FOK    EEROR8    PATENT.  419 

summons,  lie  is,  by  ineans  of  tluit,  eniiLlcd  to  understand  tlic 
creditor's  deniand.  Forms  of  summons  differ,  but  the  essen- 
tials are  nearly  the  same  everywhere.  If  the  summons  is  mis- 
leading,— especially  if  it  has  misled  the  defendant,  its  defects 
may  constitute  good  ground  for  quashing  an  attachment. 

If  the  summons  and  writ  are  regular  in  form,  they  must  be 
served  by  the  proper  officer,  since  service  by  another  has  been 
lield  ground  for  vacating  attachment. ^  The  defendant  must  be 
served  at  the  proper  time:  an  attachment  may  be  dissolved 
because  it  has  been  served  on  the  defendant  when  service  could 
not  legally  be  made, 2 

Total  absence  of  affidavit,  or  of  one  setting  forth  the  required 
statute  facts,  is  an  irrefragable  reason  for  quashing  an  attach- 
ment,* The  defect,  in  such  case,  is  jurisdictional,  and  the 
judge  should  discontinue  proceedings  upon  his  own  motion,  so 
far  as  the  ancillary  suit  is  concerned,  if  the  defendant  does  not 
move  to  dismiss.  If  the  requisitions  of  the  statute  are  not 
substantially  observed,  with  regard  to  the  affidavit,  the  proceed- 
ings under  it  are  void,  and  the  attachment  may  be  quashed  on 
motion.*  Failure  to  include  in  the  affidavit  the  averment 
"  that  the  attachment  is  not  sued  out  for  the  purpose  of  vexing 
or  harassing  the  defendant,"  is  ground  for  dissolution,  where 
such  averment  is  a  statutory  requisite.  ^  So,  when  the  statute 
required  that  oath  by  an  attorney  against  his  client's  non-resi- 
dent debtor  should  be  positive  in  the  allegation  of  non-resi- 
dence, his  affidavit  that  he  was  "informed  and  believed"  was 
insufficient,^  though  statutes  are  not  all  so  exacting  with  respect 
to  all  deponents, ' 

Attachments  have  frequently  been  quashed  because  of  alter- 
nation in  the  statement  of  the  grounds  for  the  writ;*   but  much 

'  Lawrence  v.  Featherston,  18  Miss.  Moody  v.    Levy,   58   Tex.   532. 

845.  ^  Deupree  v.  Eisenach,  9   Ga.  508. 

2  McFenan   v.  Wherry,  5  Cranch!  ">  McNamara   v.  Ellis,  14  Ind.  51G. 

C.  C.677.  8  Stacy  v.    Stichton,   9   Iowa,  399; 

*Erwin  ».  Commercial  Bank,  3  La.  Jewel   ?).  Howe,  3   Watts,  (Pa.)  144; 

Ann.  186.  Wray  v.  Gilmore,  1  Miles,  (Pa.)  75; 

*  Clark  1).  Roberts,  1  111.  222 ;  Cow-  Alien    v.  Fleming,  14  Rich.   (S.  C.) 

ard  V.  Dillinger,  50  Md.  59.  190. 

''  Saunders  v.  Cavett,  38  Ala.  51 ; 


420  DISSOLUTION    OF    ATTACHMENT. 

depends  upon  the  nature  of  the  alternation,  and  many  affidavits 
are  perfectly  good  notwithstanding  the  disjunction  of  tlie 
grounds,  as  it  was  shown  in  the  third  chapter. ^  Uncer- 
tainty, liowever,  is  good  ground  for  the  motion  to  dissolve; 
even  though  the  allegations  be  clearly  stated  in  the  affidavit,  if 
t]ie  averments  of  the  petition  render  the  plaintiif's  statements 
amhicruous  as  a  whole,  the  attachment  may  he  quashed.'*  A 
verified  petition  may  eke  out  an  affidavit  and  render  the  plain- 
tiff's meaning  certain.  ^ 

The  truth  of  the  affidavit  is  not  brought  into  question  by  a 
rule  to  quash  for  patent  errors.* 

A  slight  error  or  a  little  delay,  by  the  clerk,  in  filing  an  affi- 
davit duly  made,  is  not  good  ground  for  vacating  an  attachment, 
though  it  may  have  been  levied  before  the  filing. ^ 

In  the  sections  on  the  attachment  bond,  in  the  third  chap- 
ter, the  necessity  of  complying  with  the  requirements  of  stat- 
utes, with  respect  to  it,  was  sufficiently  set  forth.  The  failure 
of  the  plaintiff  to  comply  is  proper  ground  for  dissolving  an 
attachment.^  Though  the  plaintiff  may  have  signed  a  blank 
bond,  failure  to  have  it  filled  and  filed  leaves  him  in  the 
same  plight  as  though  he  had  done  nothing  towards  compliance 
with  the  requirement'  Even  when  he  had  executed  a  bond  on 
the  day  the  writ  was  issued,  it  is  held,  (perhaps  too  stringently,) 
that  the  attachment  should  be  quashed  on  motion,  because  it 
ante-dated  the  bond.^      In  such  case,  it  has  otherwise  been  held 


See   authorities  therein,  pp.  98-  Ann.  186;  Ford  ».  Hurd,  4  S.  &  M. 

100.  683;  Tiffany  «.  Lord,  65  N.  Y.   3l0; 

2  Marshall  v.  Alley,  25  Tex.  343.  Van  Loan  v.  Lyons,  61  Id.  22;  Davis 

3  Chittenden  «.  Hobbs,  9  Iowa,  417.  t.  Marshal],    14  Barb.   96;  Kelly  v. 

*  Searcy  v.  Platte  County,  10  Mo.  Archer,  48  Id.  68;  Bank  of  Alabama 
269;  Haris  i;.  Trapp,  2  Nott  &  Mc-  ■».  Fitzpatrick,  4  Humph.  311;  Stev- 
Cord,  (S.  C.)  130;  Paul  v.  Ward,  21  enson  v.  Bobbins,  5  Mo.  18;  Kellogg 
Ind.  211.  «.    Miller,    6    Ark.    468;  Osborne  e. 

5  Hughes  V.   Stinnett,  9   Ark.  211;  Schiffer,  37  Tex.  434;     Benedict    v. 

Wright    V.   Ragland,    18   Tex.   289;  Bray,  2  Cal.  251 ;    Hisler  v.  Carr,  34 

Bank  of  Augusta  v.  Conrey,  28  Miss.  Id.  641. 

667;   Wheeler  v.   Slavens,   21  Miss.  'Boyd  ■p.  Boyd,  2  Nott  &  McCord, 

623 ;  Brash  v.  Wielarsky,  36  How,  Pr.  (S.  C.)  125. 
253.  ^  Hucherson  v.  Ross,  2  A.  K.  3Iar- 

*  Erwin  v.  Commercial  Bank,  3  La.  shall,  (Ky.)  349. 


QUASHING    FOR    ERRORS    PATENT. 


421 


tliat  tlie  proper  remedy  is  a  plea  in  a!)ateinent  and  not  a  motion 
to  quash.  1  If  the  bond  and  writ  bear  equal  date,  the  attach- 
ment should  be  sustained. ^ 

Thouo-h  a  bond  may  be  executed  and  tiled  before  the  issuance 
of  the  writ,  if  it  is  fatally  defective,  the  attachment  may  be 
dissolved, 3  unless  the  plaintiff  has  the  right  to  amend  and.  pro- 
ceeds to  do  so.* 

Such  defects  in  bonds,  their  execution,  tiling,  etc.,  or  omis- 
sions of  proper  sureties  thereto,  constitute  good  grounds  for 
quashing.  Thus,  if  the  bond  is  not  given  by  the  plaintiff, ^ 
or  by  his  agent  or  attorney  when,  expressly  or  impliedly,  the 
law  allows  such  representative  of  the  plaintiff'  to  execute  the 
bond,  but  is  made  and  signed  by  a  stranger,  the  attachment  may 
be  quashed  for  lack  of  bond.  So  also  if  the  surety  or  sureties 
are  shown  to  be  not  such  as  the  law  requires  with  respect  to 
their  number,  residence,  solvency,  ability  to  pay,  etc.^  So  also 
if  the  amount  of  the  obligation  is  not  as  great  as  the  statute 
requires.' 

The  court  cannot  look  beyond   the  face  of  the  bond  itself) 


»  Didier  v.  Galloway,  3  Ark.  501. 

2  McKenzie  v.  Buchan,  1  Nott  & 
McCord,  (S.  C.)  205. 

8  Root  V.  Monroe,  5  Blackf.  (Ind.) 
594;  Budsong  v.  Sledge,  8  Ga.  521 ; 
Work  V.  Titus,  12  Fla.  628;  Gallager 
1).  Coggswell,  11  Id.  127;  Homau  v. 
Brinckerhoff,  1  Denio,  (N.  Y.)  184; 
Rocheleller  v.  Hoysradt,  2  Hill,  (N. 
Y.)  616. 

*Conklin  «.  Harris,  5  Ala.  213; 
Jackson  v.  Stanley,  2  Id.  326;  Plan- 
ters' and  Merchants'  Bank  v.  An- 
drews, 8  Porter,  (Ala.)  404;  Lowe  ». 
Derrick,  9  Id.  415;  Oliver  v.  Wilson, 
29  Ga.  642;  Irvin  v.  Howard,  37  Id. 
18;  Tevis  ®.  Hughes,  10  Mo.  380; 
Wood  V.  Squires,  28  Id.  528;  Beards- 
ley  V.  Morsran,  29  Id.  471 ;  Henderson 
«.  Drace,  30  Id.  358;  Jasper  Co.  v. 
Chenault,  38  Id.  357;  McDonald  v. 
Fist,  53  Id.  343;  Lea  v.  Vail,  3  HI. 
473;  Cummings».  Denny,  6  Mo.  App. 


602.  In  this  last  case  it  was  held 
that  an  attachment  suit  should  not  be 
dismissed  tor  InsutEcient  bond  till 
opportunity  for  filing  another  has 
been  given. 

^  Jones  V.  Anderson,  7  Leigh,  308 ; 
Ford  V.  llurd,  12  Miss.  683;  Myers©. 
Lewis,  1  McMullen,  54;  Mantz  v. 
Hendley,  2  Hen.  &  Mun.  308. 

SMcCook  «.  Willis,  28  La.  Ann. 
448:  (one  surety  non-resident.)  Jack- 
son V.  Stanley,  2  Ala.  326;  Lokett  v. 
NeufVille,  55  Ga.  454. 

^  Brown  «.  Whiteford,  4  Rich.  327; 
Young  tj.  Gray,  Harper,  38 ;  ]M  amine 
V.  Murphy,  8  Ind.  272;  Martin  v. 
Thompson.  3  Bibb.  252;  Williams  v- 
Barrow,  3  La.  57;  Pope  v.  Hunter,  13 
Id.  306 ;  Jackson  v.  Warwick,  17  Id. 
4::;6;  Graham  v.  Burckhalter,  2  La. 
Ann.  415;  Fellows  v.  Dickens,  5  La. 
Ann.  131;  P  ;irr  v.  Lyon,  5  Ct.  538; 
Davis  V.  Marshall,  14  Barb.  96 ;  Gal- 


422  DISSOLUTION    OF    ATTACHMENT.  ' 

upon  a  motion  to  qnasli  for  insufficicncj  as  to  tlie  amount,  nnm- 
her  of  sureties,  form  of  the  obligation,  etc.,  where  evidence 
aliunde  is  not  allowed  Ly  the  attachment  statute  or  practice  in 
the  State.  1 

Where  the  bond  is  not  fatally  defective,  but  is  such  as  to  pro- 
tect the  defendant,  and  is  in  substantial  com|)liance  with  the 
statute  requiring  it,  and  is  amendable,  courts  will  not  because  of  its 
defects  dissolve  the  attachment  upon  motion. s  Nor  will  they 
dissolve  it  because  of  harmless  surplusage  written  in  the  bond  ;3 
nor  for  want  of  a  seal  where  the  statute  does  not  make  it  essen- 
tial.* 

There  is  no  writ  commanding  an  officer  to  seize  property  in 
a  proceeding  against  a  thing  irrespective  of  persons;  but  in  a 
proceeding  against  a  thing  as  the  property  of  a  particular  per- 
son who  is  already  personally  charged  with  indebtedness,  M-ith 
the  purpose  of  rendering  it  indebted  by  creating  a  lien  upon  it, 
there  must  be  a  writ  or  warrant  issued  to  the  officer,  command- 
ing him  to  seize  any  property  of  that  particular  person.  An 
attachment  depends,  therefore,  npon  the  writ.  Without  a  writ, 
it  may  be  quashed  on  motion,  since  no  one  can  lawfully  attach 
property  under  the  attachment  statutes,  without  a  judicial  order 
to  do  so.  Anybody  may  seize  preliminarily  to  the  libel  of  goods 
or  other  property,  on  the  ground  of  forfeiture,  to  have  the  s^a^z^s 
judicially  declared,  but  only  an  officer  duly  authorized  by  a 
mandate  of  court  can  seize  a  debtor's  property  at  the  suit  of  a 
creditor  to  have  a  lien  put  on  it  and  enforced.  An  attachment 
may  be  quashed  if  it  appears  from  the  record  that  there  was  no 
writ,  or  no  writ  issued  by  the  court  directly  or  through  its 
minister,  the  clerk;  if  there  was  a  writ  which  was  not  in  coni- 

]aij;lier  V.  Cogswell,  11  Da.  127;  Ben-  u.  Oppenheimer,  25  Md.  350;    Dean 

edict  V.  Bray,  2  Cal.  251;    Saulter  v.  v.  Oppenheimer,  Id.  36S;    O'Neal  v. 

Butler,   10    Ga.    510;    Thompson   v.  Owens,    1    Haywood,    (N.    C.)    362; 

Arthur,  Dudley,  253;  Briggsw.  Smith,  Frankel  v.  Stern,  44  Cal.  1G8. 
13  Tex.  2G9.  =*  gi^ockley   ».  Davis,    17    Ga.    175; 

'  Spear  v.  King,  14  Miss.  276.  Kalm  v.  Herman,  3  Ga.  266;  Bourne 

2  Knox  V.  Atterburg,  3  Dana,  (Ky.)  v.  Plocker,  11  B  Mon.  21;  Steamboat 

580;  Smith  v.  Pearce,  6  Munf.  (Va.)  Napoleon®.  Etter,  6  Ark.   103;    Fel- 

585;  Plumpton  v.  Cook,  2  A.  K.  Mar-  lows  «  Miller,  8  Blackford,  231 ;  Ran- 

sliall,  (Ky.)  450;  Leach  v.  Thomas,  2  ning  v.  Beeves,  2  Tenn.  Ch.  263. 
Noit  &  McCord,  (S.  C.)  110;  Howard  *  Gusquet  v.  Collins,  57  Tex.  340. 


QUASHING    FOR    ERROllS    PATENT.  423 

pliance  with  the  statute;  if,  though  tlie  attachment  statute  may 
not  have  been  viohited  so  far  as  it  literally  requires  a  writ,  there 
lias  been  a  viohition  of  its  spirit;  if,  though  the  statute  men- 
tions nothing  of  a  writ,  the  attachment  has  been  executed 
without  one;  if  the  writ  itself  was  deficient — failinij  to  irive 
full  authority  to  the  officer  to  attach;  if  it  was  fatally  defective 
in  form;  if  it  was  illegally  issued — on  Sunday — on  a  legal 
holiday — at  some  time  not  allowed  by  law;  if  it  was  not  prop- 
erly signed  by  the  judge  or  clerk,  when  that  is  imperative;  aad 
if  not  properly  sealed,  when  a  seal  is  rendered  indispensable  by 
the  statute.  lu  brief  it  may  be  said  that  an  attachment  may 
be  quashed  or  vacated,  either  for  fatal  defects  in  the  matter  w 
form  of  the  writ  itself  or  for  irregularities  in  its  issue,  appear- 
ing of  record.* 

To  take  advantage  of  a  defective  execution  of  the  M-rit  and 
make  it  the  reason  for  quashing,  the  defendant  must  find  evi- 
dence of  it  in  the  return.  However  erroneous  the  sheriff's 
course  may  have  been  when  attaching  property  of  the  defend- 
ant, only  what  the  record  shows  to  have  been  irregular  and 
erroneous  can  be  properly  assigned  as  ground  for  the  motion  to 
set  the  attachment  aside  for  patent  errors. 

If  it  appears  from  the  return-  that  no  property  has  been 
attached,  or  validly  attached,  the  suit  is  at  an  end  so  far  as  it  is 
against  property,  (or  rather,  has  never  fully  come  into  being,) 
and  the  court  is  without  jurisdiction  over  the  property  of  the 
personal  debtor.  ^ 

'  Mansur  v.   Coffin,   54    Me.   314;  Osgood  c.  Holyoke,  Id.  410;  Saco  » 

Coward  «.  Dillinger,o6:Md.  59;  Key-  Hopkiulon,   29    Id.   2G8;     Askew  t 

nolds'O.  D:mirell,  19  N.  H.  394;  Pat-  Steveuson,    Phill.    (N.    C.)   L.    181 

rick  V.  Solinger,  9  Daly,  (N.  Y.)  149;  Deau    y.  Garnet,  1    Duv.    (Ky.)   408 

Park's.  Hamron,  14  Vt.  211;  Paine  o.  Bourine  v.  Hocker,   II  B.  Mou.  23 

Tilden.  20  Vt.  554;    Curry  v.  Wood-  Greenvault  v.  F.  &  M.  Bank,  2  Doug, 

ward,  50  Ala.  258 ;  Woodly  v.  Shirley,  (]\Iicli.)  498 ;  Philpott  v.  Newman,  11 

Jklinor,  (Ala.)  14;  O'Farrell  v.  Heard,  Neb.  299 ;  Blair  v.  Shew,  24  Kan.  280 

22  :Minn.  189;    Musgrave  v.  Brady,  1  2  i^^ge  v.  Whaley,  14  La.  Ann.  374 

I^Iorr.  (Iowa,)  45(5;  Barber  «.  Swan,  4  Williams  v.  Skipwith,  34   Ark.  529 

Gi-eene,  (Iowa,) 352;  Hngan  B.  Burch,  Reynolds  y.  Horn,  4  La.   Ann.  187 

8  Iowa,  309;    Byrd    v.    Hopkins,    16  Clay  ?;.  Neilsou,  5  Hand.    (Va.)  590 

;Miss.    441;  Hanson   b.  Dow,  51    Me.  Seers  v.  Blakesly,  1    Root,  (Ct.)   54; 

105;  Neally  B.  Judkins,  48  Id.  410;  Embra  «.  Silliman,  Id.  128. 


424  DISSOLUTION    OF    ATTACHMENT. 

If  the  return  gives  no  description  of  property  sufficient  to 
identity  it,  and  it  is  so  situated  that  the  possession  of  it  by  the 
sheriff  is  not  sufficient  to  distinguish  it  from  other  property  not 
attached,  (as  when  it  is  a  part  of  a  mass,  or  is  intermixed  with 
other  goods,  or  is  not  susceptible  of  manipulation,)  the  attach- 
ment ought  to  be  set  aside  for  want  of  description.  It  is  no 
ground,  however,  when  goods  are  attached  and  held,  and  kept 
se})arately  so  as  to  be  forthcoming  upon  judgment,  that  they 
are  not  specifically  described,  i 

The  essential  requirements  of  the  statute,  with  respect  to  the 
levy,  must  be  observed,  and  reported  in  the  return,  under  pain 
of  nullity.  If  posting  at. the  court-house  is  a  statutory  essen- 
tial, omission  to  make  an  official  return  that  a  copy  of  the 
attachment  w^as  there  posted  is  cause  for  quashing  attachment.  ^ 

There  is  also  good  cause,  when  there  is  record  evidence  of 
the  violation  of  a  statute  making  a  return  of  the  value  of  attached 
property  essential ;2  or  the  time  of  attaching;  or  the  pei'son 
served;  or  the  officer  serving;  or  the  publication,  or  any  other 
matter  made  essential.  A  return  by  an  unauthorized  officer  is 
not  cause  for  dismissing  the  personal  action.  ^ 

The  violation  or  neglect  of  statutory  requirements  may 
appear  as  well  by  the  omission  of  any  mention  of  them  as  by  a 
statement  in  the  return.  The  record  shows  what  has  not  been 
performed  as  well  as  what  has  been  done.  Its  silence  with  refer- 
ence to  an  essential  act  in  making  the  levy  is  sufficient  evidence 
of  its  neglect,  so  that  the  omission  may  be  assigned  as  error 
patent  upon  the  record  and  made  a  ground  for  a  motion  to 
quash  the  attachment. 

If,  however,  something  has  been  wrongfully  done,  of  such  a 
character  as  to  vitiate  the  levy,  but  which  does  not  affirmatively 
appear  of  record,  nor  can  be  inferred  therefrom,  such  as  undue 
force  or  violence  in  the  execution,  fraud  or  unlawful  strategy 
in  making  the  seizure,  attaching  beyond  the  bounds  of  tho 
court's  jurisdiction,  etc.,  the  defendant's  remedy  is  not  tho 
motion  to  quash  for  patent  errors. 

'  Green  v.  Payne,  1  Ala.  235.  (Ga.)  109. 

a  "VVilsoQ  V.  ilay,  T.  U.  P.    Charlt.  »  Ui^eg  ^_  Crow,  57  ]\Iiss.  G76. 


QUASIIIXG    ON    KVIDENCE    BEYOND    THE    KECOKD.  425 

In  tlie  ]n-!ietice  of  sevcnil  of  the  States,  amend incnts  are 
allowL'd,  even  after  a  iTK^tioii  to  quash  lias  been  filed,  so  as  to 
defeat  the  motion.  Both  the  petition  and  the  affidavit  are  there 
amendable  at  that  stage,  if  they  are  merely  defective  and  not 
wholly  inadmissible.  If  amendable,  though  not  yet  amended, 
motions  to  quash  have  been  refused.  ^  But  this  is  not  the  gen- 
eral practice;  and  it  may  be  added  that  nowhere  can  the  absence 
of  an  affidavit  be  supplied,  after  rule  to  vacate  attachment 
ment  for  the  want  of  one.=^ 

It  has  even  been  held  that  an  attachment  suit  should  not  be 
dismissed  on  account  of  the  insufficiency  of  the  bond  without 
first  giving  the  plaintiff  opportunity  for  filing  a  new  one,^ 
though  this  seems  contrary  to  the  generally  received  doctrine 
that  a  sufficient  bond,  filed  before,  or  simultaneously  with  the 
issuance  of  the  writ,  is  essential  to  the  validity  of  the  attach- 
ment. 

Sec.  3.    Quashing  on  Evidence  beyond  the  Record. 

An  attachment,  regulai-l_y  issued,  legal  on  its  face,  strictly  in 
conformity  to  statute,  may  be  based  on  false  allegations.  The 
court  may  have  acted  in  the  rightful  exercise  of  jurisdiction, 
and  the  aflidavit  may  have  presented  such  a  statement  of  facts 
with  jeg.ird  to  the  parties,  the  character  of  the  debt,  and  the 
grounds  for  attacliing,  that  the  writ  could  not  have  been  legally 
refused,  yet  there  may  remain  a  good  defense  against  the  suit 
to  be  established  by  evidence  beyond  the  record.     Especially  is 

1  Branch  ®.  Frank,  81   N.  C.   180;  son  i>.  Dace,  30   Mo.    358;    Drew  v. 

M:igoon«.  Gillett,  541owa,  54;  Hath-  Dequindre,     2    Doug.    (Mich.)     93, 

uway  V.  Davis,  33  Cal.   IGl ;   Tarkin-  Lavvton  v.  Keil,  51  Barb.  30;  34  How. 

ton  V.  Broussard,   51   Tex.   550,   and  Pr.  465.     See  Atkins  v.  Womeldorf, 

Pierce  «.  Bell,  21  Id.  690,  both   with  53  Iowa,  153;  Murdough  «.  McPher- 

relerence  to  the  petition  ooly;  Camp-  riu,  49  Iowa,  479.     Centra:    Marx  «. 

bell  ».  A\'iietst()ne,  4  111.   361;  Culler  Abraham,  53    Tex.   264,    as    to  the 

V.   Kicliardson,  125  Mass.  72;    (See  affidavit. 

Wanvn    v.    Lord,    131    Mass.     560;  2  :\ic Reynolds  «.   Neal,   8   Hump. 

Knight ».  Dorr,  19   Pick.  48;  Seeley  (Tenn.)  12. 

V.  Brown,  14  Id.  177;)  Graves  v.  Cole,  ^  Henderson  v.  Drace,   30  Mo.  358: 

1    Greene,  (Iowa,)   405;    Mendes  v.  Tevis  t\  Hvighes,  10  Id.  380;  Kistiam 

Freilers,  16  Nev.  383;  Fitzpatrick  v.  v.  Marshall,  10  Abb.  Pr.  424. 
Flaunagan,  106  U.   S.  650;  Header- 


42(5  DISSOLUTION    OF    ATTACIIMKNT. 

tliis  time  when  the  court,  iu  considering  an  application,  is  con- 
fined to  the  plaintiff's  ex  parte  statements,  and  not  required  or 
permitted  to  investigate  his  averments  by  evidence  beyond  the 
affidavit. 

Under  such  circumstances,  the  writ,  though  issued  legally  is 
issned  improvidently.  It  will  hold  good  unless  it  is,  in  some 
form,  put  at  issue;  but  if,  upon  proper  proceeding,  the  falsity 
of  the  plaintiff's  allegations  or  the  illegality  of  the  proceeding 
is  made  to  appear  by  due  proof,  the  suit  may  be  abated. ^ 

It  requires  a  general  appearance  to  enable  the  defendant  to 
take  action  for  the  dissolution  of  attachment  on  grounds  other 
than  those  apparent  upon  the  record.  ^  After  such  appearance, 
he  may  assign  such  grounds  as  that  the  plaintiff"  had  obtained 
judgment  and  issued  execution  on  the  same  demand  in  another 
State;^  that  another  suit  on  tiie  same  cause  of  action  is  pending 
between  the  parties;*  that  a  second  writ  of  attachment  has 
been  sued  out  by  the  plaintiff  against  the  defendant,  on  the 
same  demand  in  the  same  county  ;5  that  an  attachment  was 
sued  out  by  the  plaintiff  against  the  defendant,  on  the  same 
demand,  in  another  State,  and  has  been  dissolved  by  bonding: « 
that  the  attachment  is  devised  merely  to  defeat  the  demand  of 
another  creditor ;''  and,  as  will  hereafter  be  more  particularly 
shown,  he  may  traverse  the  affidavit  and  test  its  truth,  and  urge 
any  grounds  against  the  bond,  the  writ,  the  seizure,  the  non- 
compliance with  the  statute  in  any  essential  particular  or  any 
other  cause,  not  necessarily  confining  himself  to  defects  patent 
upon  the  record. 

His  right  to  oppose  the  attachment  in  some  form  cannot  be 
denied.  Could  he  not  exercise  this  right  by  some  method  he 
would  be  cut  off  from  all  defense  of  the  ancillary  suit.  Such 
denial  would  be  as  obviously  unjust  as  the  refusal  of  defense  to 

1  Lovier  «.  Gilpen,  6  Dana,    (Ky.)  McKinsey  «.  Anderson,  4  Dana,  (Kv.) 
321.  62. 

2  Whiting  «.    Budd,    5    Mo.    443;  *  Harris  ■».  Linnard,  9  N.  J.  L.  58. 
Evans  ».  King,  7  Mo.  443.  «  Clark  v.  Wilson,   3  Wash.  C.    C. 

8  Downing  v.   Phillips,  4  Yeates,      5G0;  Fisher  ■«.  Conseqiia,  2   Id.    382. 
274.  '  Reed  v.  Ennis,  4  Abb.  Pr.  393. 

*  James  «.  Dowell,    15  Miss.  333; 


QUASillNG    ON    EVIDENCE    BEYOND    THE    RECOED.  427 

any  litiii-ant  sued  in  an  ordinary  action.  The  general  right 
exists,  whether  recognized  in  the  attaclimeiit  statute  or  not;  it 
is  independent  of  statute;  it  is  protected  by  the  constitution 
and  recognized  by  courts  everywhere. 

But  the  method  of  opposing  attachments  is  dilferent  under 
the  statutes  and  practice  of  the  different  States.  "Whether  such 
op])Osition  must  be  in  limine  or  upon  the  trial  of  tlie  merits 
of  the  cause  is  properly  a  question  for  statute  regulation;  or, 
in  the  absence  of  it,  for  settlement  according  to  the  established 
practice  in  the  State  where  the  suit  is  instituted.  It  might 
everywhere  be  relegated  to  the  merits;  but  it  has  generally' 
been  found  more  convenient  and  practicable  to  dispose  of  it 
preliminarily  and  summarily, ^  since  such  practice  often  saves 
the  court  and  the  litigants  from  the  labor  of  a  protracted  trial. 
If  good  grounds  exist  for  dissolving  the  attachment,  the  sooner 
they  are  passed  upon  the  better  for  all  j)arties  concerned. 

The  principal  methods  in  use  for  dissolving  an  attachment 
on  grounds  dehors  tlie  record,  are  the  motion  or  rule  to  dis- 
solve, and  the  plea  in  abatement. 

The  traverse  of  the  atlidavit  on  such  grounds  may  be  nnder 
motion; 2  and  it  may  be  under  a  plea  in  abatement, ^  according 
to  the  23ractice  in  different  States. 

Whether  by  plea,  or  by  motion  on  grounds  dehors  the  record 

»  Lindsley  v.  Malone,  23  Pa.  St.  24;  Bower  v.  Town,  12  Mich.  230. 

Hatry  «.  Shnuiiiu,  13  ]\Io.  547;   Can-  ^^  Clieniuilt  y.  Chapron,  5  Mo.  438; 

Bon  c.  McManus,    17   Mo.  345.     See  Swau  ■«.  O'Fallon,  7  Mo.  231;  Hatry 

Hawkins  ■».  Albright,  70  111.87.  •».    Shuman,  13  Mo.   547;  Cannon?). 

2  Branson  «.  Shinii,  13ISr.  J.  L.  250;  McManus,    17  Mo.    341;    Excelsior 

Boyos  t).  Coppinger,   2   Yeates,  (Pa.)  Fork  Co.  v.   Lukens,   38    Ind.  438; 

277;  Lambden  v.  Bowie,  2  Md.  334;  Voorhies  v.  Hoagland,  6  Blackf.  232; 

Gover «.  Barnes,    15Md.  570;  Hard-  Abbott     v.     Warriner,    7    Id.    573; 

esty  D.  Campbell,  29  ]\Id. 533;  Clarke  Garrett    ».    Tirmen,    8     Miss.    465; 

V.  Meixsell,  29  Md.  221 ;  Wheeler  v.  ]\Ioore  v.  Hawkins,  (5  Dana,  (Ky.)  289; 

Degnan,  2  Nott.  &  McCord,  (S.  C.)  Lovier  «.  Gilpin,   Id.   321;  Meggs  «. 

323.     (But  see  Havis  v.   Trapp,   Id.  Sbafler,     Hardin,    (Ky.)    65;     Gold- 

130,   and  Shrewsbury  «.  Pearson,   1  sticker  «.  Stetson,  21  Ala.  404;  Kirk- 

McCord,   331;)   Bank  of   Commerce  man  ■?).  Patton,  19  Ala.   32;  Lowry  b. 

e.  KvUland,  &c.  R.  R.  Co.  10  How.  Pr.  Stowe,  7  Port.   (Ala.)  483;  Dunn  v. 

1 ;  N.  Y.  &  Erie  Bank  v.  Codd,  11  Id.  :\Iyers,  3  Yerg.  (Tenn.)  414;  Isaacs  v. 

221;  Furman  ■».  Walter,    13  Id.  348;  Edwards,    7    Humph.    (Tenn.)   465; 

Boscher  t\  Roullier,  4  Abb.  Pr.  390 ;  Foster  v.  Hall,  4  Id.  340 ;  Harris  v. 


428  DISSOLUTION    OF    ATTACHMENT. 

after  the  general  appearance  of  tlie  defendant  as  a  pai'ty  to  tlie 
suit,  the  principles  involved  are  much  the  same;  and,  in  a  gen- 
eral treatise  designed  for  all  the  States,  it  is  not  important  to 
distinguisli  nicely  between  the  two  methods.  Every  practi- 
tioner is  conversant  with  the  method  of  his  State,  and  to  him 
the  important  matter  is  the  general  subject  of  dissolution. 

In  Alabama,  the  plea  in  abatement  is  the  proper  means  when 
the  affidavit  has  not  been  verified  or  subscribed,  and  when  not 
made  before  the  proper  justice,  i  and  when  there  is  no  bond  or 
no  affidavit. 2  Tlioucrli  there  be  an  afhdavit  and  bond,  if  there 
is  a  variance  between  them  and  the  writ,  the  defendant,  to  take 
advantage  of  it,  must  plead  in  abatement.^  The  affidavit 
should  be  set  out  on  oyer,  when  the  defendant  seeks  to  abate 
the  attachment  for  defects  therein.  * 

In  Maryland,  objection  to  attachment  proceedings,  on  the 
ground  that  they  do  not  show  compliance  with  statute,  may  be 
by  motion  to  quash,  by  motion  in  arrest  of  judgment  after  ver- 
dict, and  may  be  urged  on  appeal. ^ 

In  Arkansas,  it  was  held  that  the  proper  judgment  sustaining 
a  2)lea  in  abatement  of  instijficiency  of  the  affidavit  was  that 
the  suit  abate  and  that  the  defendant  recover  costs  ;6  but  the 
truth  of  the  affidavit,  (it  was  held,)  cannot  be  disputed  by  such 
plea.''  It  lies,  however,  for  want  of  the  bond,  or  for  want  of 
one  not  executed  by  the  plaintiff  or  some  person  duly  author- 
Taylor,  3  Sneed,  586;  Leak  v.  Moor-  Kellogg  v.  Miller,  6  Ark.  468;  Hell- 
man,  Pliill.  (N.  C.)  L.  16«;  Houses.  man  «.  Fowler,  34  Ark.  235.)  Nor 
Hamilton,  48  111.  185;  Boggs  «.  Bind-  can  the  truth  be  thus  questioned  in 
skoff,  23  111.  06;  Eddy  ■».  Brady,  16  Alabama  when  the  attachment  is 
111.  300;  Pulliau  «.  Nelson,  28  111.  judicial:  Garner  «.  Johnson,  22  Ala. 
112;  Archer  «.  Claflin,  31    111.  806;      494. 

White  ».  Wilson,  10  111.  21 ;   Parsons  »  Lowry  v.  Stowe,  7  Port.  483 ;  Elli- 

V.  Case,  45  111.  296;  Hill  v.  Cunning-      son  v.  Mounts,  12  Ala.  472. 
ham,  25  Tex.  25;  Armstrong  v.  Blod-  ^  Kirlcman  v.  Patton,  19  Ala.  32. 

gett,  33Wis.  284;  Mantz».  Hendley,  "  *Goldsticker  v.  Stetson,  21  Ala. 
2  Hen.  &  M.  (Va.)  308 ;  Bank  of  the      404. 

Valley  v.  Bank  of  Berkely,  3  W.  Va.  ■*  Banks  v.  Lewis,  4  Ala.  599. 

386.     In  Arkansas  it  has   been  held  '  Coward  v.  Dillinger,  50   Md.   59. 

that  the  truth  of  the  affidavit  cannot  ^Ilellman  y.  Fowler,  24  Ark.  235. 

be  disputed  by   plea   in   abatemeut:  ^  Taylor  «.  Richards,   9   Ark.   378; 

Taylor  v.  Richards,  9  Ark.  378;  Man-       Mandell  v.  Peet,  18  Ark.  236. 
dell  V.  Peet,  18  Ark.  236.     (But   see 


QUASHING  ON  EVIDENCE  BEYOND  THE  RECORD.      429 

ized  by  him;*  but  not  if  the  bond  is  signed  by  sureties  and  is 
bindiiio;  on  the  pUiintiff  who  has  ratified  it,  thougli  he  may  not 
have  sii^ned  it.^ 

In  Illinois,  affidavits  are  traversed  by  the  plea  in  abatement. ^ 
For  the  purposes  of  the  traverse,  the  pleader  need  not  pray  oyer 
of  the  affidavit,  since  it  is  of  record.  Such  plea  may  be  met 
by  demurrer;  but,  if  the  demurrer  be  overruled  there  can  then 
1  e  no  reply  to  the  plea,  and  the  writ  must  be  quashed.* 

The  plea  does  not  lie  on  the  ground  of  the  insufficiency  of 
the  affidavit,  in  that  State;  it  is  a  waiver  of  all  patent  defects. 
iM'en  if  it  should  be  withdrawn  or  stricken  from  the  file,  after 
having  been  pleaded,  the  defendant  cannot  afterwards  attack  the 
affidavit  for  apparent  defects."  But  if  the  plaintiff  has  amended 
and  averred  new  matter,  the  defendant  ma}'  plead  in  abatement 
to  the  additional  allegations,'   putting  their  truth  at  issue. 

The  plea  may  be  interposed  when  the  affidavit  alleges  that 
the  debtor  has  departed  from  the  State  with  the  intention  of 
removing  his  property  from  it  to  the  injury  of  his  creditors;' 
that  he  is  a  non-resident  ;8  and,  generally,  any  traversable 
ground  may  be  met  by  this  plea. 

In  Mississippi,  all  the  material  allegations  of  the  affidavit 
must  be  traversed  under  a  plea  in  abatement  to  an  attachment 
against  an  absconding  debtor.'  The  defendant  may  file  the 
plea  when  he  appears  and  replevies  the  attached  proi3erty.i" 

In  Florida,  when  the  defendant  denies  under  oath  all  the 
allegations  of  the  plaintiff,  the  onus  is  on  the  plaintiff  not  only 
to  prove  the  indebtedness,  but  also  to  sustain  the  grounds  of 
the  attachment,  1 1  The  onus  is  on  the  plaintiff  when  the  affida- 
vit is  traversed.  ^  ^ 


1  KellogH[  V.  Miller,  6  Ark.  468.  not    a  non-resident  when    the  writ 

2Tayl^)r  v.  Richards,  9  Ark.  STS.  was  issued  was  equivalent  to  a  plea 

'  Boggs  i\  BiudskofF,  23  111.  60.  that  he  was  not  such  when  the  affida- 

*Eddy  V.  Brady,  16  111.  306.  vit  was   made;— the  writ  and  affida- 

B  Archer  v.  Claflin,  31  111.  306.  vit  bore  even  date. 

6  Id.  8  Garrett  v.  Tirman,  8  Miss.  465. 

'  Eddy  «.  Brady,  16  111.  306 ;  House  i"  James  ®.  Dowell,  15  Miss.  333. 

0.  Hamilton,  43  111.  185.  "  Meiuhard  v.  Lillienthal,  17  Fla. 

8  Parsons  v.  Case,  45  111.  290:  held,  501. 

that  a  plea  that  the   defendant  was  '^  Colby  v.  Gould,  16  Fla.  107. 


430 


DISSOLUTION    OF    ATTACIIMP;NT. 


In  Missouri,  the  trutli  of  tlie  uffidavit  is  tested  by  this  plea;^ 
and  objections  thereto,  as  well  as  objections  because  of  variances, 
etc.,  are  waived  by  answer  to  the  merits. 2 

In  Korth  Carolina,  defects  of  process  are  waived  by  answer  ;3 
they  should  be  opposed  by  plea  in  abatement. ^ 

The  insufficiency  of  the  affidavit  to  show  the  amount  of  the 
debt,  and  the  falsity  of  it  in  alleging  the  non-residence  of  the 
debtor,  are  to  be  pleaded  in  abatement,  and  would  be  waived  by 
answer,  as  held,  in  Tennessee. ^  Whether  the  defendant  was 
about  to  remove  from  the  State  as  charged,  is  matter  for  the 
plea;'   and  so  is  any  ground  upon  which  the  writ  is  issued.''^ 

The  plea  that  the  defendant  never  absconded,  filed  against  the 
affidavit  charging  that  he  had,  is  in  abatement.  ^  If  the  ground 
is  that  the  debtor  was  about  to  move  property  out  of  the  State, 
he  may  meet  it  with  the  plea  that  the  property  was  exempt  from 
attachment.^ 

Where  the  defendant  may,  upon  special  motion  to  vacate  for 
falsity  of  the  charge,  offer  affidavits  to  disprove  the  grounds  on 
which  the  Avrit  was  issued,  the  plaintiff  is  allowed  to  introduce 
further  evidence  by  way  of  affidavits  to  suppurt  his  position 
and  rebut  the  defendant's  evidence;  and  the  court,  in  consider- 
tion  of  what  is  thus  adduced  on  both  sides,  sustains  or  sets 
aside  the  writ.^o  Such  motion  should  be  made  at  the  first 
opportunity,  and  before  issue  joined  on  the  merits  of  the  suit. 

1  Chenault  v.  Chapron,  5  Mo.  4S8;  '"  Nelson  v.  Mnncli,  23  Minn.  229; 
Swan  «.  O'Fallon,  7  Id.  231;  Dider  Shndduck  ».  Marsh,  1  Zab.  (N.  J.) 
«.  Courtney,  Id.  500;  Switzer  ij.  Car-  434;  St.  Amaut  v.  Beixcedon,  3 
son,  9  Id.  740.  Sandf.  (N.  Y.)  703;  Day  v.   Bennett, 

2  Hatry  v.  Shnman,  13  Mo.  517;  3  Harrison,  (N.  J.)  287;  Cam  man  n  t). 
Cannon  v.  McManus,  17  Mo.  345;  Tompl<ins,  1  Code  R.  12.  In  New 
Henderson  v.  Drace,  30  Mo.  358.  York  such  motion  may  be  referred  to 

^  Price  v.  Sharp,  2  Ired.  L.  417.  a  referee;  and  when  lie  had   not  re- 

*Leak  v.  Moorman,  Pliill.  L.  168.  ported  before  judgment  was  rendered 

^  Foster  v.  Hall,  4  Humph.  34G.  in  the    case,    the    court   afterwards 

®  Isaacs  ».  Edwards,  7  Humph.  465.  heard  the  motion:  Thompson  v.  Cul- 

^  Harris  v.  Taylor,  3  Sneed,  536.  ver,  15  Abb.  Pr.  97.     But  the  motion 

*  Mantz  1).  Hendley,  2  Hen.  &  M.  can  be  made  only  before  judgment: 

(Va.)  308;    Bank    of  the   Valley    v.  Swezy  «.  Bartlett,  3   Abb.  Pr.  (N.  S.) 

Bank  of  Berkely,  3  W.  Va.  386.  444;  Lawrence  v.  Jones,  15  Abb.  Pr. 

"  Hastings  v.    Phoenix,    59    Iowa,  110. 
304. 


QUASHING    ON    EVIDENCE    BEYOND    THE    KECOKD.  431 

Wlietlicr  the  right  tlms  to  contest  the  tnitli  of  tlie  plaintiff's 
attidavit'is  conferred  by  statute,  or  is  exercised  independently 
of  it,  the  practice  is  much  the  same  where  affidavits  or  other 
evidence  beyond  the  papers  of  the  case  are  receivable  upon  the 
hearinir;  and  the  ri^ht  need  no.t  ne('e.<surilv  be  statutory. ^ 

In  order  to  entitle  the  mover  to  introduce  testimony  delcors 
the  record,  he  must  have  laid  the  proper  ground  therefor. ^  If 
he  confines  his  motion  to  the  original  papers,  he  cannot  go 
beyond  them  in  offering  his  evidence,  nor  can  the  plaintiff  intro- 
duce new  affidavits  to  sustain  his  attachment.^  It  is  only  when 
the  mover  assigns  ground  beyond  the  record  and  presents  affi- 
davits or  other  evidence  beyond  the  papers,  that  the  plaintiff 
in  the  case — defer.dant  in  rule — may  offer  affidavits  additional 
to  that  upon  which  the  attachment  was  issued. ■*  Such  addi- 
tional testimony  should  be  confined  to  the  support  of  the 
ground  or  grounds  on  which  the  attachment  was  issued,  and 
not  extended  to  tl;e  maintenance  of  the  attachment  on  other 
grounds;  but  it  may  be  offered  to  show  facts  posterior  to  the 
original  application  tending  to  sustain  it,  or  to  show  a  subse- 
quent change  in  the  relations  of  the  parties.  ^  It  has  been  held, 
however,  that  the  deposition  of  the  plaintiff  himself,  taken 
after  the  issuance  of  the  writ,  is  inadmissible  on  such  rule.  ^ 

Where  the  charire  was  that  the  debtor  was  about  to  remove 


1  Pliilipsburgli  Bank  v.  Lnckawan-  *  Morgan  v.  Avery,  7  Barb.  G56;  St. 

na  R.  R.  Co.  3Dut:h.  203;  City  Bank  Armant  y.  De   Beixcedon,   3   Sandf. 

\   Merritt,   1    Green,    (N.   J.)    131;  703;  Furman  «.  Walter,  13  How.  Pr. 

fienne  v.    McCarly,    1    Ball.    165;  348;  Gasherrie  v.  Apple,   4   Id.   64; 

Campbell  «.  Morris,  3  Har.  &  McH.  Bank  of  Commerce   v.    Rutland  &c. 

(Md.)  535 ;  Hardesty  'o.  Campbell,  29  R.  R.  Co.  10  Id.  1 ;  New  York  &  Erie 

Md.  533;  Gover   v.    Barnes,  15   Md.  Bank «.  Codd,    11    Id.   221,   and   see 

576;  Lambden  ?).  Bowie,   2  Md.  334;  the  cases  cited  in  the  previous  note, 

Boyes  ■?).  Coppinger,  1   Yeates,  277;  and  Talbot  «.  Pierce,  14  B.  Mon.  (Ky.) 

Bransons.  Shinn,  1   Green,    (N.   J.)  195;  Eldridge  v.   Robinson,  4  Serg. 

250.  &  Rawle,  (Pa.)  548. 

'  Dickinson,  ?;.  Barnes,  3  Gill,  (Md.)  ^  j)jckinson  v.   Benham,   12  Abb. 

485.  Pr.    158;    20    How.    Pr..  343.     See 

3  Steuben  Co.  Bank    v.   Alberger,  Dynes.i).  Robinson,  11  Iowa,  137. 

56  How.  Pr.  845;  Brewer  «.  Tucker,  «  Cowlon  v.    DeLisle,    1    Browne, 

13  Abb.  Pr.   76;  Wilson  ®.  Briton,  6  (Pa.)  291.     See  Gibson  v.  McLaugh- 

Id.  33 ;  Genin  o.  Tompkins,  12  Barb.  lin,  Id.  292. 
2o5. 


432  DISSOLUTION    OF    ATTACHMENT. 

liis  property  froin  tlie  State  to  defraud  creditors,  lie  wns  prr- 
mitted  to  testify  and  deny  intent  to  defraud,  on  trial  of  his  mo- 
tion to  dissolve  the  attachment.'  When  the  ground  is  the  non- 
residence  or  removal  of  the  debtor,  the  defendant  should  clearly 
disprove  it,  to  have  the  attachment  dissolved.'' 

On  a  motion  to  dissolve,  made  by  a  partner  when  attachment 
had  been  sned  out  against  him  on  the  ground  of  his  non-resi- 
dence, by  his  co-partner,  on  an  unsettled  partnership  account, 
the  court  held  that  it  might  inquire  whether  the  cause  of  action 
arose  wholly  within  the  State.  ^ 

The  defendant  who  appears  to  contest  the  truth  of  the  affida- 
vit, must  adduce  some  proof  of  its  falsity  before  the  plaintiff 
can  be  obliged  to  add  other  evidence  to  that  of  the  affidavit 
itself.  The  burden  of  proof  is  upon  the  plaintiff-in-rule  in  such 
case,  in  the  first  instance;*  but  where  the  affidavit  is  not  con- 
sidered as  evidence  at  all  on  the  trial  of  such  a  rule,  the  onus 
is  on  the  defendant-in-rule  to  establish  the  grounds  of  his 
attachment.  5  And  where  he  attempts  to  do  so  by  the  submis- 
sion of  additional  affidavits,  the  plaintiff-in-rule  may  meet  them 
by  counter  affidavits.^ 

On  the  trial  of  a  rule  to  quash,  when  affidavits  may  be  read 


^  Hyde -y.  Nelson,  11  Mich.  353.  In  dissolved    on    motion,     in    Kansas: 

New  York,  evidence   aliunde   is  ad-  Pierce  -u.  Myers,  28  Kan.  3G4. 

missible  to  sustain  or  disprove  alle-  ^  Stone  ■».  Boone,  24  Kan.  337. 

gations  of   the   affidavit  respecting  *  Simons 'W.  Jacobs,  15  La.  Ann.  425; 

fraudulent  removal  or  disposition  of  Offut  ■y.  Edwards,  9  Rob.    (La.)  90; 

property:  Livermore  v.   Rhodes,  27  Brumgard  y.  Anderson,  16   La.  341; 

How.  Pr.  506;  Dickinson  w.  Benham,  ]\Ioore  /-.  Angiolette,  12  Martin,  (La.) 

12Abb.  Pr.  158;  O'Reilly  v.   F.eel,  532.     But  see  Sublette.  Wood,  76  Va. 

37  How.  Pr.  272;  Swezey  i;.  Bartlett  318.      The   attaching  creditor  must 

3  Abb.  Pr.  444.  first  show  that  sufficient  cause  exist- 

^Hendeison  v.  Travis,  6  La.  Ann.  ed  for  issuing  the  attachment. 

174;    Gilbert    v.    Hollinger,    14   Id.  ^  Conner -y.  Commissioners  of  Rice 

441;  Lewis  D.  Wright,  3   Bush.  (Ky.)  Co.  20  Kan.   575;  Coston  v.  Paige,  9 

311;  Deguan  v.  Wheeler,  2  Nott  &  Ohio  St.  397;  Hernsheim  «.  Levy,  33 

McCord,  (S.  C.)  323;  Shrewsbury?;.  La.   Ann.   340;    Ellison  «.  Tallon,  2 

Pearson,    1    McCord,     (S.    C.)   331;  Neb.    14;    Smith  ?).  Eastou,   54  Md. 

Brandon  v.  Shinn,  13  N.   J.  L.  250 ;  1S8. 

Hill  V.  Whitney,  16  Vt.  461.     If  the  ^  Swezey  v.  Bartlett,  3  Abb.  Pr.  N. 

debt     claimed    of     a    non-resident  S.  444;  Lawrence  v.   Jones,  15    Abb. 

is  not  due,  the  attachment  may  be  Pr.  110;  Phillipsburg  Bank  y.  Laclc 


QUASniNG    ON    EVIDENCE    BEYOND    THE    RECOliD.       '       433 

hy  both  parties,  the  question  is  wlietlier  there  is  le^^al  basis  for 
tlie  attachment:  not  whether  it  was  rightfully  issued  on  tlie 
papers.  The  case  is  still  open  to  be  tried  upon  the  merits.^ 
On  such  a  rule,  if  the  attaching  creditor  fails  to  sustain  the 
facts  stated  in  his  affidavit,  after- the  onus  has  been  thrown  upon 
him,  the  attachment  will  be  quashed. ^  Though  the  writ  was 
legally  granted  on  the  plaintiff's  oath  to  his  belief,  the  existence 
of  reasons  for  belief  is  not  necessarily  in  question  on  the  trial  of 
a  motion  to  dissolv-e,  but  whether  the  fact  really  was  as  the  plain- 
tiff believed  it  to  be.^ 

"Where  the  evidence,  j^ro  and  con,  is  not  confined  to  affidavits, 
the  defendant  may  cross-examine  the  plaintiff. ^  The  burden 
of  proof  is  on  the  defendant  when  the  fraudulent  contracting  of 
the  debt  sued  on  is  the  plaintiff's  ground  for  attaching.  ^ 
When  the  issue  is  the  wrongful  suing  out  of  the  writ  based  on 
an  alleged  sale  to  defraud  creditors,  the  attachment-defendant 
has  been  held  incompetent  to  testify  to  the  intent  with  which 
he  disposed  of  his  property.  ^ 

The  principal  or  personal  action,  (when  the  debtor  has  been 
served  or  has  appeared,)  is  not  dismissed  by  the  defeat  of 
the  ancillary  suit. ''  If  there  has  been  no  service  or  appear- 
ance, there  is  really  no  personal  suit,  and  the  quashing  of  the 
attachment  ends  the  whole  case.^  It  does  not  acquit  the  debtor 
of  his  obligation,  if  such  exists,  since  he  may  be  sued  therefor 
thereafter. 9  Its  effect  is  confined  to  the  questions  adjudicated 
by  the  ruling  upon  the  motion  or  plea;  and  it  is  final  as  to 

awanna  R.  R.  Co.  27   N.  J.   L.  206;  "  Ridgway  v.  Smith,  17  111.  33. 

Shadduck   v.   Marsh,  1   Zab.   (N.  J.)  «  Blanchard  v.  Brown,  42  Mich.  46. 

434;  Day  v.  Bennett,  3  Harrison,  (N.  *  Tyler  v.  Saflbrd,  24  Kan.  5S0. 

J.)   287;  Bronson  v.  Shinn,  1  Green,  »  Keith  v.    Stetter,   25   Kan.    100; 

(N.  J.)  250;  City  Bank  v.  Merritt,  Id.  Simon  v.  Stetter,  Id.  155. 

131 ;  Hodson  v.  Tootle,  28  Kan.  317.  «  Selz  v.  Belden,  48  Iowa,  451. 

1  Hermann  v.  Am&d^e,  30  La.  Ann.  ''  Bundrem  v.  Denn,  25  Kan.  430; 

393;  Miller  v.  Chandler,  29  La.  Ann.  Hills  v.  Moore,  40   Mich.  210;  Her- 

88;  O'Reilly  c.  Freal,   37   How.   Pr.  mann  v.  Amed&e,  30  La.  Ann.  393; 

272;  Genin  v.   Tompkins,   12   Barb.  Miller  tj.  Chandler,  29  Id.  88. 

265;    Roscher  v.  Roullier,  4  Abb.  Pr.  ^  Watson  v.  Simpson,  15   La.  Ann. 

396.     See  Furman».  Walter,  13  How.  709;  Kendall  v.  Brown,  7  Id.  GOB. 

Pr.  348;  Vienne  v.  McCarty,  1  Dull.  ^  Hill  v.  Culan,  1  Grant,  (Pa.)  Cas. 

154.  463. 

28 


434  DISSOLUTION    OF    ATTACIIMEXT. 

them,  unless  overruled  on  appcnL*  The  effect  of  making  tlie 
rule  absohite  is  to  discharge  tlie  attached  property;*  and  upon 
such  ruling,  appeal  may  be  taken  or  a  writ  of  error  sued  out,  as 
the  practice  may  be  in  any  State.  Refusal  to  quash  is  not 
usually  a  matter  for  such  writ  or  for  appeal, ^  but  the  practice  is 
not  uniform.  4  When  a  motion  is  overruled,  the  defendant 
should  take  exception  at  once,  if  he  wishes  it  reviewed  ;5  but 
the  ruling  may  be  assigned  as  error  on  appeal. ^ 

The  defendant  has  a  right  to  the  return  of  his  property,  when 
he,  upon  legal  grounds,  has  the  attachment  dissolved  pending 
the  main  action;  and  the  court  has  no  power  to  assume  that  he 
has  lost  such  right  because  there  are  junior  attachments  pend- 
ing against  the  property  sought  to  be  released.' 

Sec.  4.    Traverse  after  Dissolution  by  Bonding. 

After  the  dissolution  of  the  attachment  and  the  release  of 
the  property,  by  virtue  of  a  bond  conditioned  to  pay  whatever 
the  plaintiff  may  recover,  can  there  be,  in  the  case  itself,  any 
further  questioning  of  the  validity  of  the  attachment?  The 
negative  has  been  held:  but  it  has  not  been  the  doctrine  every- 
where, and  the  affirmative  seems  the  preferable  answer.  Rea- 
soning aside  from  the  decisions,  it  may  be  remarked  that  great 
injustice  might  be  done  if  the  invalidity  of  the  attachment 
could  only  be  shown  prior  to  the  execution  of  such  bond.  The 
circumstances  may  be  urgent;  the  immediate  possession  of  the 
attached  property  may  be  very  important  to  the  defendant;  his 
instant  recovery  of  it  might  be  essential  to  the  keeping  of  his 
business  engagements;  his  credit  as  a  merchant  or  business  man 
might  depend  upon  regaining  his  attached  property  at  once; 
his  attached  stock  might  be  rapidly  declining  in  a  time  of  panic; 

»  Danforth  ro.  Rupert,  11  Iowa,  547 ;  Id.  231. 

Rancher?;.  McElhenny,  11  Mo.  App.  ^  Schlatter  v.  Hunt,  1  Mo.  G51. 

4^4.  »  Wells  V.  St.   Dizier,  9  La.  Ann. 

2Currens  v.  RatcliflFe,  9  Iowa,  309.  119. 

^Massey  v.  Walker,   8   Ala.    167;  '  Schall  «.  Ely,  43  Mich.  401 ;  State 

Ellison  V.  Mounts,  12  Id.  472.  Bank   of  Fenton    v.  Whittle,  41   Id. 

*  Allowed   in   Texas:    Dawson    v.  3(io;  Sheldon  y.  iStewart, 43  Mick.  574. 
Miller,  20  Tex.  171;  Messneri).  Lewis, 


TKAVEKSE    AFTElc    i>i&SOLUTION    KY    BOXDIXO.  435 

Lis  business  as  a  newspaper  publisher  niiglit  admit  of  no  delay 
ill  getting  his  press  and  other  materials  free  from  arrest — and 
yet  the  court  might  not  be  in  session,  the  judge  might  be  absent 
for  months,  no  opportunity  might  be  afforded  for  testing  the 
validit}'-  of  the  attachment  afonce.  AVhat  must  he  do?  lie 
may  give  a  forthcoming  bond,  and  his  right  thereafter  to  test 
the  attachment  is  generally  conceded.  I'ut  suppose  tlie  attached 
thing  consists  of  goods  which  he  wishes  to  ship  abroad  for  sale 
at  once,  to  meet  a  good  market:  he  cannot  then  consistently 
give  a  forthcoming  bond.  He  might  give  it,  with  explanation 
to  the  surety  and  assent  by  him,  but  he  is  not  obliged  to  do 
that,  and,  ordinarily,  he  could  not  consistently  do  that.  It 
would  be  a  violation  of  his  enfjaofement. 

He  is  driven  to  the  execution  of  a  dissolution  bond.  But 
suppose  the  attachment  is  illegal;  there  is  no  affidavit,  no  bond, 
no  valid  writ,  nothing  that  will  bear  test  in  the  judicial  cruci- 
ble. Ought  he  not  have  the  opportunity,  when  the  court  opens, 
to  question  the  validity  of  the  attachment?  Whether  the  seiz- 
ure has  been  in  vacation  or  not;  whether  he  could  have  taken 
a  rule  to  dissolve  before  bondiiig  or  not,  is  there  any  good  rea- 
son why  he  should  not  have  the  character  of  the  attachment 
judicially  ascertained,  in  the  case,  notwithstanding  its  dissolu- 
tion by  bonding?  Is  there  any  good  reason  why  he  should  be 
relegated  to  his  defense,  (in  cane  of  a  suit  on  the  bond,)  that 
the  obligation  taken  by  him  and  his  surety  was  without  valid 
consideration  because  of  the  illegality  of  the  attachment? 

It  may  be  said  that  the  dissolution  bond  put  an  end  to  the 
attachment  suit.  That  is  true;  but  it  did  not  put  an  end  to 
the  personal  suit;  and  it  is  in  that  remaining  suit  that  the  test- 
ing of  the  forced  obligation  to  pay  whatever  may  be  recovered 
therein  is  to  be  had.  It  may  be  said  that  the  defendant  will  be 
bound  to  pay  whatever  may  be  recovei-ed  against  him,  bond  or 
no  bond.  That  is  true;  but  the  obligation  of  the  surety 
depends  upon  the  validity  of  the  bond,  and  the  validity  of  the 
bond  depends  upon  the  legality  of  the  attachment.  The  prin- 
cipal  should  protect  his  surety. 

Not  only  in  extreme  cases,  wdien  the  owner  of  the  attached 
property  is   necessitated  to  procure  its   immediate  release  for 


436  DISSOLUTION    OF     „jfrACnMENT. 

hnsiness  purposes  as  ahove  suggested,  but  in  all  cases  there  is 
reason  for  allowing  the  defendant  to  traverse  the  attachment 
after  having  given  the  dissolution  bond;  for  the  bonding  is  in 
a  sense  involuntary,  compulsory,  unwillingly  executed. '  The 
principal  reason  however  is  that  the  obligation  assumed  is  with 
the  luivrntten  proviso  that  the  court  has  jurisdiction  and  that 
the  attachment  is  valid;  and  while  this  might  avail  the  obligors 
when  sued  upon  the  bond,  after  judgment,  it  ought  also  to  be 
available  to  prevent  the  rendition  of  any  immediate  judgment 
against  the  surety  in  case  the  attachment  can  be  shown  to  be 
void  for  want  of  jurisdiction  or  for  any  other  cause. 

Whether  the  defendant  may  thus  resist  and  traverse  the 
attachment  after  giving  bond  to  dissolve  it,  and  after  it  has 
really  been  thus  dissolved,  is  a  question  that  has  been  differently 
decided  in  different  States.  The  affirmative  has  been  very 
earnestly  maintained.  ^ 

The  U.  S.  Circuit  Court,  sitting  in  Arkansas,  following  the 
rulings  of  the  Supreme  Court  of  that  State  as  in  duty  bound, 
and  construing  §  416  of  its  code,  which  requires  that  dissolu- 
tion bonds  shall  be  conditioned  "to  perform  the  judgment  of 
the  court,"  said  that  such  bond  "does  not  estop  the  defendant 
from  traversing  the  affidavit  for  attachment  and  defending 
against  the  attachment  in  every  respect  as  if  such  bond  had 
not  been  executed  and  the  proj^erty  had  remained  in  the  hands 
of  the  officer";  and  that  if  the  attachment  is  not  sustained,  the 
plaintiff,  though  he  recover  judgment  for  his  debt,  cannot  resort 
to  the  bond  to  compel  payment  of  such  judgment.* 

1  Vose  v.  Cockroft,  44  N.  Y.  415.  wards  v.  Prather,  Id.  334;    Claflin  v. 

''^' Lehman  ®.  Berdin,  5  Dillon,  340;  Baere,  57  How.  Pr.  78;  Bildersee -y. 

Singer  Manuf.  Co.  v.  Mason,  Id  488;  Aden,  10  Abb.  Pr.  (N.  S.)  163;  Cald- 

Delano    v.    Kennedy,  o     Ark.   457;  well  t).  Colgate' 7  Barb.  253 ;  Homan 

Childress  ij.  Fowler,  9  Id.  159;  Wood  v.  BrinkerhoflF,   1   Denio,  184;  Fort- 

i;.  Carleton,   26  Id.   663;    Paihles  v.  man  i;.  RoUier,  8  Ohio  St.  553 ;  Alex- 

Roux,  14  La.  83;  Quine  v.  Mayers,  2  ander  v.  Jacoby,  23  Id.  358;  Auet  v. 

Rob.  (La.)  510;  Myers  v.  Perry,  1  La.  Albo,  21  Id.  349;  Uoge  v.  Norton,  23 

Ann.   372;  Brinegar  ?).  Griffin,  2  Id.  Kan.  374;  Gass  «.  Williams,  46  lud. 

154;  Kendall  v.  Brown,  7   La.  Ann.  253. 

6GS;    Love  ».  Voorhies,  13    Id.  549;  »  Lehman  u.  Berdin,  5  Dillon,  340. 

Bauer «.  Antoine,  22   Id.   145;    Ed- 


TRAVERSE    AFTER    DISSOLUTION    BY    BONDING.  437 

The  Supreme  Court  of  South  Carolina  said  in  a  comparatively 
recent  case  that  the  question,  whether  the  giving  of  a  dissolu- 
tion bond  is  a  waiver  of  the  right  to  set  aside  the  attachment, 
was  before  them  for  the  first  time.  It  is  remarkable  that  they 
had  not  previously  encountered  this  mooted  in(|uiry.  After 
revie^\•ing  numerous  cases,  irro  and  con^  they  came  to  the  con- 
clusion that  the  bondini;-  was  no  waiver. ^ 

It  would  seem  that  this  view  should  universally  prevail  where 
the  character  of  the  attachment  suit  is  recoo:nized  as  beino- 
against  property  in  effect  though  personal  in  form;  and  that  the 
opposite  could  only  find  acceptance  where  the  action  is  held  to 
be  personal  only,  and  the  bond  a  mere  bail  bond. 

The  opposite  position  has  been  as  firmly  maintained.  After 
the  dissolution  of  the  attachment  by  the  substitution  of  a  valid 
bond  to  pay  whatever  judgment  may  be  rendered  against  the 
defendant,  it  has  been  held  that  no  proceeding  can  follow  in  the 
case  to  test  the  validity  of  the  attachment. ^  The  case  is  very 
different  from  that  of  the  delivery  of  the  attached  property  to 
the  defendant  under  a  forthcoming  bond,  since,  in  the  latter  case, 
the  attachment  remains  intact,  the  defendant  holds  under  the 
sheriff,  and  the  attached  property  is  still  constructively  in  court, 
and  there  may  be  a  proceeding  to  test  the  validity  of  the  attach- 
ment; and,  if  the  attachment  is  found  invalid,  the  forthcoming 
bond'  falls  with  it. 

The  defendant,  (and  usually  his  surety,)  is  understood  to  con- 
cede by  bonding,  beyond  his  power  of  denial  in  defending  a  suit 
upon  the  bond,  that  the  property  released  belonged  to  himself, 
and  was  actually  attached,  (whether  legally  or  not,)  and  was  not 
exempt  from  execution  and  therefore  from  attachment. ^      Such 

»  Bates  «.  Killian,  17  S.  C.  553.  v.   Fowler,  9   Ark.    159;  Gillispie  ?? 

2Kenuecly?).  Morrison,  31  Tex.  307;  Clark,    1  Tenn.   2;  Harper  ?;.  Bell,  2 

Huffy.    Hutchinson,   14  How.  580;  Bibb.  221;  Fife  i).  Clark,  3   McCortl, 

Barry  v.  Foyles,  1  Pet.  311;    Hazel-  317;  Eeynolds  y.  Jordan,  19  Ga.  436; 

rigg  1).  Donaldson,  2  Met.  (Kj.)  445;  Scaulon  ®.  O'Brien,  21  Minn.  434. 

Dierolf  ».  Winterfield,  24  Wis.  143;  ^  i?teplieus  v.  Greene  County  Iron 

Endress  ®.  Ent,  18  Kan.  236;    Wliar-  Cf).  11  Heisk.  71;  Frost  v.  White,  14 

ton  V.  Conger,  9  Smedes  &,  M.  (Miss.)  La.  Ann.  140;  Beal   v.  Alexander,  1 

510;  Inmau  v.  Stratton,  4  Bush,  445;  Bob.  (La.)  277;  McMillan  v.  Dana,  18 

Payne  «.  Suell,  3  Mo.  409;  Childress  Cal.  339;    Kennedy  v.  Morrison,  31 


488  DISSOLUTION    OF    ATTACHMENT. 

concession  however  cannot  be  predicated  of  the  obligors  of  a  dis- 
sohition  bond,  executed  by  virtue  of  law  or  the  consent  of  the 
plaintiff,  when  the  defendant  himself  has  not  signed  it  or  is  not 
the  ])rincip'il;  at  least,  it  has  been  so  held  in  Lonisiana. ^ 
Bonds  to  release  attached  property,  given  by  others  than  the 
defendants  in  the  suits,  are  allowed  under  the  practice  of  some 
of  the  States.  Claimants,  intervening  in  such  suits,  may  exe- 
cute bonds  in  their  own  behalf;  representatives  of  absent 
defendants  may  sign  as  principals,  etc.,  under  statute  pi'ovi- 
sions.  In  an  attachment  suit  against  husband  and  wife,  she 
bonded;  and  the  judgment  being  rendered  against  him  ou]j, 
her  sureties  were  not  bound.  ^ 

Sec.  5.    Dissolution  by  Final  Judgment  for  Defendant. 

Final  judgment  for  the  defendant,  in  the  personal  action,  dis- 
solves the  attachment,  as  a  matter  of  course,  though  he  may 
have  previously  failed  in  all  his  efforts  to  have  it  dissolved  for 
causes  appertaining  to  the  ancillary  proceeding.  Such  judg- 
ment enables  him  to  prosecute  his  action  for  whatever  injury 
he  may  have  received  by  the  abuse  of  the  process,  as  well  as 
one  expressly  dissolving  the  attachment  in  the  course  of  the 
suit.  It  is  manifestly  unnecessary  to  dwell  upon  this;  but  it 
seemed  proper  to  mention  it  l)efore  proceeding  to  discuss  the 
subject  of  damages  for  the  plaintift' 's  abuse  of  the  statutory 
remedy  by  attachment. 

The  judgment-defendant  is  entitled  to  the  release  of  his 
property  immediately,  unless  there  has  been  an  appeal  granted 
or  writ  of  error  sued  out  operating  as  a  supersedeas.  Judgment 
of  restoration  is  entered  in  proceedings  i7i  rem  of  general  char- 
acter, when  the  libellant  is  defeated  in  his  attempt  to  get  a 
judgment  of   condemnation;  and,  in    such    proceedings    of    a 

Tex.  207;  Colemfin  «.  Bean,  32  How.  334;    Baur  ?>.   Antoine,   23   Id.   145; 

(N.  Y.)  Pr.  370;  Reynolds  i'.  Jordan,  Qnine   v.   Mayes.  2   Rob.    (La.)   olO; 

W  Ga.  436 ;  Taylor  v.  Taylor,  3  Bu.sh.  Oliver  v.  Gwin,  17  La.  28 ;  Kendall  v. 

(Ky.)118;  Hazelrigg  ».  Donaldson,  2  Brown,  7    La.   Ann.  068;  Schlater  v. 

Met.  (Ky.)  445.  Broaddus,  14  Id.  82 

>  Edwards  ■».  Pratlier,  22  La.  Ann.  ^  Jaycox  v.  Chapman,  10  Ben.  517 


DISSOLUTION    BY    FINAL    JUDGMENT    FOR    DEF't.  439 

limited  character,  such  as  an  attachment  suit  is,  restoration  ia 
sometimes  expressly  decreed,  though  the  usual  entry  is  jiuh/-- 
ment  for  defendant,  leaving  the  res^toration  a  matter  of  implica- 
tion. There  is  really  no  necessity  that  it  should  be  expressed, 
since  the  personal  judgment  for  tlie  defendant  is  a  dissolution 
of  the  attachment.  1  The  attachment  of  land  is  held  to  be 
dissolved  by  the  death  of  the  defendant.  3 

Jndg-mcnt  of  restoration  to  a  claimant  docs  not  affirm  his  title 
against  any  person  afterwards  suing  for  it,  even  though  the 
question,  in  the  casein  which 'the  judgment  was  rendered,  turned 
upon  that  of  the  claimant's  ownership.* 

'  Hisfofins  r.  Gracp,  59  Md.  oGj.  ^  Gushing  v.  Laird,    15   Blatcliford, 

2  Lipscomb  c.  McClellan,  72  Ala.  15L       219. 


4-iO  DAMAGES    Ul'ON    DISSOLUTION. 


CHAPTER    XIY. 

DAMAGES    UPON     DISSOLUTION. 

§  1.     Reconvention.  §  4.     Recovery  of  Costs  and  Fees. 

3.     Suit  after  Dissolution.  5.     Exemplary  Damages. 

3.    The  Bond  Obligation. 

See.  1.     Reeonvention, 

To  employ  the  extraordinary  remedy  of  attacliment  wheii 
the  ordinary  is  adequate;  to  create  a  lieu  upon  the  property  of 
a  debtor  to  secure  an  unprivileged  debt,  by  means  of  a  false 
aftidayit;  to  seize  and  detain  unincumbered  property  or  credits 
of  the  debtor,  prior  to  judgment,  for  the  purpose  of  execution, 
when  the  plaintiff  is  not  entitled  to  judgment,  is  an  abuse  of 
the  statutory  relief  which  the  law  affords  to  the  honest  creditor. 
If,  by  such  abuse,  the  defendant  is  injured,  he  may  recover 
damages.  As  a  general  rule,  his  right  of  action  for  damages 
does  not  arise  until  there  has  been  dissolution  of  attachment 
upon  the  plaintiff's  failure  to  maintain  it  by  judgment;  but 
there  are  different  provisions  in  different  States,  and,  in  some, 
the  defendant  may  recoup  or  reconvene  for  damages  in  the 
attachment  suit  itself.  First,  then,  reconvention  will  be  here 
considered. 

Reconvention  is  of  the  nature  of  a  cross-bill;  it  is  pleaded  by 
the  defendant  in  his  answer  to  the  attachment  suit,  in  which 
the  defendant  assumes  the  position  of  plaintiff  in  reconvention 
and  alleges  whatever  damages  he  has  suffered,  their  character 
and  amount,  and  praj's  for  judgment  against  the  attacliing 
creditor.  To  such  cross  action,  the  original  plaintiff  may  plead 
any  appropriate  defense,  unless  issue  is,  under  the  practice  of 
the  State,  deemed  to  be  joined  by  the  filing  of  the  petition  for 
attachment.     The  onus  is  none    the  less    upon    the  attaching 


KECOXVENTION.  441 

creditor,  to  make  good  the  allegations  of  his  petition  Ly  reason 
of  the  recouvenor's  averments  that  the  attachment  was  wron^;- 
fully  sued  out  or  wrongfully  executed,  since  they  are  at  issue  hy 
the  answer;  but  the  burden  is  on  him  who  claims  damages  to 
})rove  that  he  has  suffered  injury  by  reason  of  the  wrongful 
attachment.  His  allegations  of  injury  are  proper  matters  for 
the  attaching  creditor  to  answer  by  way  of  joining  issue  on  the 
reconventional  demand. 

Although  the  injury  is  dependent  upon  the  decision  in  the 
attachment  case,  and  cannot  be  known  to  exist  till  that  has 
been  rendered,  yet  business  is  expedited  and  justice  more  read- 
ily administered  by  trying  both  issues  together^  so  that  the 
court,  when  vacating  the  attachment,  may  award  damages  to 
the  reconvenor  at  the  same  tim.e.  This  is  very  common  prac- 
tice in  Texas,  and  more  or  less  so  in  Iowa,  Nebraska,  Minne- 
sota, Maryland  and  other  States,  i  The  whole  controversy 
between  the  parties  is  adjudicated  as  one  cause;  the  attachment 
is  tried,  and  evidence  adduced,  and  arguments  heard,  both  with 
reference  to  the  claim  for  debt  and  the  counter-claim  for  dam- 
ages for  the  alleged  wrongful  proceeding.  Much  time  and 
labor  is  thus  saved;  for  the  testimony  which  the  defendant 
oilers  to  defeat  the  attachment  is  usually  what  he  would  offer 
to  sustain  a  separate  suit  for  damages  for  wrongful  attachment. 

Eecouvention,  under  such  circumstances,  is  anomalous;  for 
the  declaration  on  the  attachment  bond  is  thus  made  before  any 
liability  on  it  has  been  matured.  If  the  evidence  is  such  that 
wrongful  attachment  has  been  proved  and  resultant  injury 
established,  the  jury  gives  verdict  covering  both  issues,  and  the 
court  gives  the  reconvenor  judgment  on  the  bond  when  he 
decrees  the  dissolution  of  the  attachment,  and  judgment  for 
the  defendant  in  the  action  against  him  for  debt. 

By  counter-claim,  (as  the  reconventional  demand  is  styled  in 
Iowa,)  both  actual  and  exemplary  damages  may  be  passed  upon 
on  the  trial  of  the   attachment    suit.     The   defendant  who  has 

1  Hardeman    v.    Morgan,   48   Tex.  215.     See  Boyer  ■».  Clark,  3  Neb.  161; 

103;     Lowenstein    v.     Monroe,     55  Stevens  «.  Able,  15   Kau.   584;  Re<»d 

Iowa,  82;  Turner  v.   Lytle,   59   Md.  «.  Jeffries,  16  Kan.   534;  Wagner  v. 

199;    Piaymond   v.    Green,  12   Neb.  Stocking,  22  Ohio  St.  297. 


4:42  DAMAGES    UPON    DISSOLUTION. 

averred  that  the  proceeding  against  him  is  both  wrongful  and 
malicious,  aud  has  prayed  for  damages  in  a  round  sum,  may  be 
required  by  motion  to  specify  what  he  demands  as  actual  and 
what  for  exemplary  damages,  and  both  claims  go  together  to 
thejury.i  If  thus  required  by  motion,  it  is  not  obligatory 
upon  the  defendant  to  confine  himself  to  two  allegations,  one 
for  actual  and  the  other  for  exemplary  damages,  but  he  may 
itemize  his  demand  under  several  heads,  some  tending  to  recov- 
ery for  compensatory  loss;  and  others  for  vexatious  and  mali- 
cious prosecution. 2  Losses  and  expenses  incurred  in  defending 
against  the  attachment  proceeding,  those  sustained  by  being 
deprived  of  the  use  of  property  attached,  by  injury  thereto, 
and  depreciation  of  its  value,  give  rise  to  compensatory  dam- 
ages when  the  attaching  creditor  was  actuated  by  good  motives, 
but  to  exemplary  damages  or  smart  money,  when  his  motives 
were  malicious.*  Therefoi-e,  when  the  proceeding  is  vexatious, 
injurious  and  without  probable  cause  from  its  incipiency,  there 
is  no  occasion  for  the  counter-claimant  to  specify  certain  items 
of  his  claim  as  entitling  him  to  one  species  of  redress  and 
others  as  grounds  for  a  different  kind;  but  such  discrimination 
may  be  of  utility  when  an  attachment  justifiably  sued  out  has 
been  maliciously  prosecuted  by  some  particular  act.  When 
required  by  motion  to  distinguish  between  what  is  claimed  as 
actual  and  Mhat  for  exemplary  damages,  the  defendant  need 
only  specify  the  two  sums. 

In  resisting  a  counter  claim,  the  attaching  creditor,  it  has 
been  held,  need  not  establish  that  he  had  such  grounds  of 
belief  in  his  right  to  attach  as  would  reasonably  actuate  a  pru- 
dent man  in  matters  of  the  highest  moment  to  himself,  since 
he  would  not  act  upon  belief  if  there  was  a  possibility  of  its 
being  erroneous,  nor  be  so  likely  to  discover  doubts  in  matters 
of  ordinary  importance  as  in  those  of  the  highest  interest 
involving  his  life  or  fortune.  In  matters  of  the  highest 
moment  to  himself,  he  exercises  the  greatest  degree  of  care  and 
caution.     The  law  does  not  require  the  exercise  of  this  degree 

1  Dent  «.  Smith,  «#  aZ.  53  Iowa,  262.  ^  Campbell    v.     Chamberlain,    10 

2  Lowenstein  v.  Monroe,  55   Iowa,      Iowa,  337. 
82. 


RECOXVKMION.  443 

of  prudence  in  the  forination  of  a  l)elief  as  to  the  exi.stcncc  of 
I'actb  which  are  grounds  for  issuing  an  attacliinent.  It  is  suffi- 
cient if  tlie  attaching  creditor  shows  that  he  had  reasonable 
grounds  to  believe  the  allegations  of  his  petition. ^ 

The  reconvenor  or  counter-claimant  has  the  burden  of  proof 
just  as  though  the  attachment  suit  had  been  terminated  and  he 
were  suing  for  damages  in  a  separate  action.  Ilis  burden  is 
lessened  by  what  the  attaching  creditor  is  Ijound  to  prove  as  to 
the  fact  of  attaching  and  by  the  record  which  is  already  before 
the  court;  but  so  far  as  establishing  injury  by  reason  of  the 
abuse  of  the  process  and  the  amount  of  the  injury,  and  the 
malicious  motives  of  the  creditor,  the  onus  is  wholly  on  the 
reconvenor,  just  as  though  he  had  brought  a  separate  action  to 
recover  damages. 

The  defendant  can  recover  on  the  bond,  by  way  of  reconven- 
tion, only  of  the  principal  obligor,  since  the  suretj'  is  not  a 
partj  to  the  attachment  suit,  and  therefore  cannot  be  rnade  one 
to  the  cross  action..  This  is  the  rule  in  loM'a;^  and  it  will 
hold  good  everywhere  unless  there  is  statutory  provision  to  the 
contrary,  so  that  the  surety  creates  his  obligation  with  a  view 
to  such  provision  or  is  legally  presumed  to  do  so.  If  judgment 
is  thus  obtained  against  the  principal  alone,  the  surety  ought  to 
have  his  day  in  court  in  a  separate  action  before  he  can  be  held, 
unless  he  has  waived  it  by  the  terms  of  the  bond  or  in  some 
other  way.  His  right  of  defense  is  as  sacred  as  that  of  the 
principal.  He  ouglit  not,  by  reason  of  the  practice  of  recon- 
vention, be  placed  in  a  worse  position  than  he  would  be  in  a 
bond  suit  brought  against  both  obligors  after  the  judgment 
vacatincr  the  attachment. 

Where  the  right  of  reconvening  for  damages  in  the  attachment 
suit  itself  is  authorized,  it  is  necessarily  limited  by  the  juris- 
diction of  the  court  where  that  suit  is  brought  or  is  pending 
when  the  defendant  makes  his  cross  demand. ^  If  the  court  is 
only  competent  to  trj'  causes  in  which    the  demand  does  not 

^Carej'p.  Gnunison,  51  Iowa,  202;  ^  jj.ij.jgmay  ^j    Morgan,    48  Tex. 

Vorse  t.  Phillips,  37  Id.  428.  103. 

*  Bunt  V.  Rheum,  52  Iowa,  619. 


44:4:  DAMAGES    UPON    DISSOLDTION. 

exceed  a  prescribed  sum — ^suy  one  thousand  dollars,  and  an 
attacliment  suit  is  bl'ought  for  that  amount,  and  the  bond  is 
twice  as  much  under  statutory  requirement,  the  defendant, 
though  possibly  damaged  to  the  full  extent  of  the  bond,  cannot 
reconvene  for  more  than  a  thousand  dollars.  To  get  all  his 
due,  he  must  sue  by  a  separate  action  in  a  difierent  court. 

E-econvention  for  damages  sustained  by  a  wrongful  attach- 
ment in  a  former  suit,  cannot  be  made  in  an  action  for  g-oods 
sold;  it  was  held  that  such  damages  cannot  be  set  up  as  a 
counter  claim  in  such  action.  * 

Sec.  2.    Suit  after  Dissolution. 

Keconvention  for  damages  while  the  attachment  suit  remains 
pending,  is  exceptional:  the  general  practice  is  that  the  action 
for  wa-ongful  and  that  for  malicious  attachment  do  not  lie  till 
the  attachment  suit  is  at  an  end.  It  must  have  been  abandoned, 
set  aside,  settled  or  decided  in  favor  of  the  defendant  before  he 
can  sue  for  damages  by  reason  of  its  institution  and  prosecu- 
tion. 2  Prior  to  this,  a  suit  for  damages  would  be  premature. 
It  would  be  so,  thungh  the  defendant  has  gained  the  attach- 
ment suit,  if  an  appeal  by  the  plaintiff  is  pending.  Where, 
however,  suit  upon  the  bond  for  damages  was  brought  while  an 
appeal  from  the  judgment  dissolving  the  attachment  was  pend- 
ing, to  which  suit  prematurity  was  pleaded,  the  plaintiff  was 
allowed  to  amend  his  petition  and  aver  that  the  appeal  had 
been  decided  in  the  Supreme  Court  adversely  to  the  ajjpellant; 
and  the  amendment  was  sustained  and  judgment  on  the  bond 
for  actual  damages  awarded  and  confirmed.*  Had  the  appeal 
been  still  pending,  or  had  a  motion  for  a  new  trial,  arrest  of 
judgment,  or  any  thing  aifecting  the  finality  of  the  dissolution 
of   attachment,    still  remained    undecided,   prematurity   could 

1  Schmidt  ».  Bickeubach,  29  Minn.  105;  Moore  v.  Willenberg,  13  La. 
122.  Ann.  22;  Accessory  Co.  «.  McCerran, 

2  Carver  «.  Shelley,  17  Kan.  472;  Id.  214;  Harger  ■0.  Spofford,  46  Iowa, 
Atkins  V.  Swope,  38  Ark.  528;  Nolle  11;  Kinsey  ®.  Wallace,  36  Cal.  462. 
V.  Thompson,  3  Met.  (Ky.)  121;  3  ^XcDaniel  v.  Gardner,  34  La. 
Smith  V.  Story,  4  Humph.  16'.);  Ann.  341;  Dickinson  ®.  Maynaid,  20 
Spaulding  v.   Wallett,   10  La.   Ann.  La.  Ann.  66. 


SriT    AFTER    DTSSOLUTrON. 


445 


have  been  properly  pleaded;  it  is  necessary  that  the  attachment 
be  first  vacated.  ^ 

Abandonment  by  the  attaching  creditor  is  vacation  of  attach- 
ment.2 

Prematnrity  cannot  be  pleaded  by  the  attaching  creditor, 
when  sned  on  the  bond,  if  he  has  merely  been  non-suited, 
or  pnt  ont  of  court  by  an  exception  or  demurrer,  with  right  to 
sue  again. 3  Any  such  disposition  of  an  attachment,  if  not 
appealed,  is  a  Una!  vacation  of  tlie  attachment  proceeding  in 
M'hich  the  bond  was  given;  and  right  of  action  on  the  bond 
immediately  arises,  if  any  injury  has  been  suffered  by  the 
attachment  defendant.  The  renewal  of  the  suit  gives  rise  to  an 
entirely  new  attachment  with  a  new  bond. 

If,  after  an  invalid  attachment  has  been  vacated,  the  creditor 
sue  out  a  valid  attachment  against  the  same  property  in  a  suit 
against  the  same  defendant,  and  the  case  be  prosecuted  to  judg- 
ment, and  the  property  be  sold  and  its  proceeds  go  to  pay  the 
defendant's  debt,  the  latter  fVict  will  mitigate  damages  for  the 
first  and  wrono-ful  attachment. *  Little  more  than  nominal 
damat'-es  should  be  awarded.  The  defendant  should  have  recom- 
pense  for  his  outlay  in  defending  the  first  suit,  but  nothing 
more.  There  may  be  cases,  however,  in  which  he  would  be 
entitled  to  much  more.  The  mere  dismissal  of  a  suit  is  not 
always  conclusive,  in  a  suit  for  damages,  that  the  attachment 
was  wrongfully  sued  out.^  And  judgment  for  the  attaching 
creditor  is  not  always  a  bar  to  a  damage  suit  on  the  bond." 

Several  persons,  who  have  suffered  joint  injury  by  attach- 
ment, may  sue  jointly.'^  They  are  not  obliged  to  have  unin- 
jured co-obligees  of  the  attachment  bond  united  with  them  as 

1  State  V.  Williams,  48    Mo.  210;  Earl  ij.  Spooner,  3  Denio,  246. 
Pixleyc.  Eeed,  26  Minn.    80;   Sloan  ^  Nockles -y.  Eggspieler,  47   Iowa, 
■y.  Mc'Cracken,  7B.  J.  Lee,  626.  400;  Cooper  v.   Hill,   3    Bush,  210; 

2  Erwin  v.  Com.  &  R.  R  Bank,  12  Pettit  0.  Mercer,  8  B.  Mon.  .'51 ;  Eaton 
Rob.  (La.)  227.  v.  Bartscherer,  5  Neb.  469 ;  Smith  v. 

8  McDaniel  0.  Gardner,  34  La.  Ann.  Story,  4  Humph.  169. 

341 ;  Cox  V.  Robinson,   2  Rob.  (La.)  *  Bliss  v.  Heasty,  61  111.  338. 

313.     See  Sliarpe  v.  Hunter,  16  Ala.  ''  Cochrane    v.    Quackenbusb,   29 

765.  Minn.  370;  Boyd  v.  Martin,  10  Ala. 

*  Morrison  v.  Crawford,  7  Or,  472;  700. 


446  DAMAGES    UPON    DISSOLUTION. 

plaintiifs.i  If  the  attachment  has  been  sustained,  so  far  as 
some  of  the  obligees  are  concerned,  the  others  are  not  therefore 
jDrechided  from  suing  on  the  bond  for  their  own  injuries  when 
the  attachment  has  been  vacated  as  to  tliemselves.^ 

The  general  practice  does  not  require  that,  prior  to  a  suit  on 
the  bond  against  all  the  obligors,  there  first  must  be  judgment 
obtained  against  the  principal  in  a  se2:>arate  action. * 

Sec.  3.    The  Bond  Obligation, 

The  protection  of  the  defendant  against  the  wrongful  suing 
out  of  the  writ  is  what  the  bond  is  for.  The  creditor  makes 
his  own  preliminary  showing  by  aflidavit,  without  cross-exam- 
ination, to  bring  himself  within  the  statutory  authorization  for 
the  issuance  of  the  extraordinary  process.  If  he  swears  truly, 
there  is  such  a  debt  and  there  are  such  existing  grounds  as  will 
not  only  warrant  the  clerk  to  issue  the  unusual  process  but  will 
render  it  his  duty  to  do  so.  But  what  if  the  affidavit  is  false? 
AYliat  if  tlie  debt  is  either  non-existent  or  not  such  as  the  legis- 
lator conteni]»lated  when  authorizing  attachment  for  a  desig- 
nated character  of  obligation?  What  if  the  defendant  is  not  a 
non-resident,  not  an  absconder,  not  a  concealer  or  fraudulent 
disposer  of  property,  though  alleged  in  the  affidavit  to  be  one 
of  these? 

If,  considering  the  liability  of  many  to  err  wilfully  in  their 
own  supposed  interest,  and  the  liability  of  all  to  err  witlessly, 
all  persons  had  the  same  open  field  to  the  extraordinary  that 
they  have  to  the  ordinary  process,  the  former  would  be  much 
more  frequently  employed  than  it  is  at  present,  and  defendants 
often  would  be  harassed  and  injured  without  any  ready  remedy 
for  redress  and  commonly  without  any  adequate  redress  at  all. 
The  requirement  of  the  bond   tends  to  make  creditors  cautious 

'  Alexander  v.  Jacoby,  33  Ohio  St.  Dickinson  v.  McGraw,   4  Randolph, 

358.  158;  Herdon  «.  Forney,   4  Ala.   243. 

2  Id.  Contra:  Sledge  v.   Lee,  19  Ga.   411 ; 

2  Bruce  v.  Coleman,  1  Handy,  515;  Sterling  City  Mining  Co.  t.   Cock,  3 

Churchill  «.   Abraham,   23   111.  455;  Col.  24;  Kolcomb   v.  Foxworth,  34 

Jennings  v.  Joiner,  1  Coldwell,   G95;  Miss.  265. 


THE    BOND    OBLIGATION.  447 

in  their  affidavits  to  procure  the  Avrit;  lessens  tlie  numher  of 
wrong't'ul  attachment   suits,  and  gives  the  defendant  protection. 

It  is  a  general  though  not  a  universal  statutory  rule  that  the 
clerk  shall  not  issue  the  writ,  notwithstanding  the  atlidavit  that 
the  debt  and  the  grounds  are  such  as  to  render  the  attachment 
process  permissible  under  the  law,  unless  the  creditor  has  given 
a  bond,  with  sui-ety,  conditioned  that  he  will  "pay  the  defend- 
ant all  such  damages  as  he  may  sustain  from  the  wrongful  su- 
ing out  of  the  lorit;^^  or,  "all  damages  which  he  may  sustain, 
jf  the  order  is  lorongfully  obtained;"  or,  "all  damages  that  he 
may  sustain  and  ail  costs  that  may  be  incurred  by  him  in  con- 
sequence of  suing  out  the  attachment;"  or,  "all  damages  that 
may  be  sustained  by  reason  of  the  attachment,"  etc.^ 

Wherever  the  bond  is  thus  made  a  pre-requisite  to  the  issu- 
ance of  the  writ,  the  clerk  would  be  liable  in  damages  if  he 
should  act  without  it;  the  plaintiff  would  also  be  thus  liable; 
and  the  process  itself,  were  it  sufficient  to  protect  the  sheriff 
for  attaching  under  it,  would  be  otherwise  void.  It  would  not 
protect  the  sheriff  in  those  States  where  the  execution  of  the 
bond  must  be  stated  in  the  wi-it,  if  not  so  stated.  The  bond  is 
as  important  as  the  atlidavit  when  made  a  j^re-requisite  to  the 
writ,  and  should  ap;  ear  of  record. 

The  obligation  to  pay  damages,  assumed  in  the  attachment 
bond,  in  case  of  the  wrongful  causing  of  the  writ  to  be  issued, 
or  the  wrongful  procedure  under  the  writ,  has  no  reference  to 
the  personal  action  against  the  debtor  considered  apart  from  the 
proceeding  agair.st  his  property.  The  institution  of  an  ordi- 
nary action  against  the  debtor  is  the  creditor's  right,  without 
affidavit  and  without  bond.  The  institution  of  the  extraordi- 
nary action  is  not  his  right,  unless  he  bring  himself  within  the 
statute,  and  take  the  required  obligation;  but  if  the  defendant 
should  suffer  no  wrong  but  what  would  have  ensued  from  an 
ordinary  suit   legally  brought  but  not  sustained  by  evidence, 

J  Benedict    v.  Bray,   2    Cal.   251;  t.  Robbins,  5  Mo.  18;    State  Bank  v. 

Thompson   v.   Arthur,  Dudley,  (Ga.)  Hinton,  1  Dev.  L.  (N.  C.)  397;  Bank 

253;  Cousins  v.  Brashier,  1   Blackf.  of  Albany  u.  Fitzpatrick,  4  Humph. 

85;  Starr  v.  Lyon,  5  Ct.  538;  Ford  v.  311;  Briggs  v.  Smith,  13  Tex.  269. 
Woodward,  10  Jliss.  2C0;  Stevenson 


448  DAMAGES    UPON    DISSOLUTION, 

would  the  plaintiff  be  liable  upon  the  bond?  Take  this  case: 
Affidavit  and  bond  being  executed,  and  attachment  issued,  no 
property  is  seized  and  taken  from  the  defendant — the  attach- 
ment is  in  the  hands  of  a  tliird  person,  by  garnishment,  accord- 
ing to  the  sheriff's  return;  but  the  garnishee  denies  that  he  is 
a  creditor  of  the  defendant  or  the  holder  of  any  property  of 
his,  and  is  discharged.  The  personal  action  goes  on  and 
results  in  a  judgment  for  the  defendant.  Whether  the 
defendant  can  recover  or  not,  depends  upon  the  injury  he 
may  have  sustained  by  the  charges.  He  may  have  been  seri- 
ously slandered  by  a  charge  of  absconding,  for  instance.  If 
only  alleged  to  be  a  non-resident;  or,  if  it  be  conceded  that 
he  was  no  more  damaged  by  reason  of  the  attachment  than 
he  would  have  been  had  an  ordinary  suit  been  unsuccessfully 
brought  against  him,  it  would  seem  that  the  conditional  obliga- 
tion of  the  bond  would  not  have  been  incurred. 

Take  the  case  of  land  attached  when  the  owner  is  not  dispos- 
sessed; of  personal  property  only  nominally  attached,  as  is 
sometimes  improperly  done;  of  property  attached  which  proves 
not  to  be  that  of  the  defendant:  it  seems  clear  in  such  cases 
that  no  obligation  is  incurred  to  the  defendant  for  injury  done 
to  property.!  ^^f]  the  costs  of  defending  the  personal  action, 
and  the  attorney's  fees,  ought  not  to  be  included  in  damages  for 
wrongfully  suing  out  an  attachment  ancillary  to  the  main 
suit,  if  they  can  be  shown  to  be  not  consequent  from  the  issue 
of  the  writ. 2 

When  the  obligation  is  to  pay  such  damages  as  the  defend- 
ant may  recover  should  it  be  decided  that  the  attachment  was 
wrongfully  obtained,  the  subsequent  acts  of  the  plaintiff  during 


»  Phillips  V.  Bridge,  11  Mass.  242,  Ark.  614;  Hughes  «,  Brooks,  36  Tex. 

248;  Watts  iJ.  Shropshire,  12  La.  Ann.  37iJ;     Dunning    «.    Humphreys,    24 

797;     Heath    t).    Lent,    1     Cal.   410;  Woud.  31;    Alexander. -a.  Jacoby,  23 

Bridget.  Wyman,  14  Mass.  190,  195;  Ohio   St.   358;  Pettit  «.   Owen,  8  B. 

Groat    «.    Gillispie,  25   Wend.   383;  Mon.  51 ;    Burgen  v.  Shaver,  14  Id. 

Moresi  ».    Swift,  15   Nev.  215;  Pin-  500;    Johnson   v.   Farmers'  Bank,  4 

son  «.  Kirsb,  46  Tex.  26.  Bush,  283;    Trapnall   «.  McAfee,   3 

2  Andrews -e.Glenville  Woolen  Co.  Met.  Ky.  34;  Hayden  «;.  Sample,  10 

50  N.  y.  282;    White  -y.  Wyley,  17  Mo.  215. 
A'a.  107;  Boatwright  «.  Stewart,  37 


THE    BOND    OlU,ir.  \TION.  419 

the  prosecution  of  the  suit,  causing  injury  and  loss,  give  rise  to 
recoverable  damages  upon  the  dissolution  of  the  attachment. 
It  would  be  the  same  if  the  bond  were  written  in  the  usual  words, 
"if  the  writ  is  wrongfully  sued  out"  or  the  like.  Upon  disso- 
lution, it  legally  appears  that  the  attachment  was  wrongful,  and 
subsequent  acts  are  resultant.  Tlie  obligation  certainly  includes 
the  reparation  of  loss  in  property  caused  by  its  seizure  and 
detention;  its  depreciation,  deterioration  or  destruction.  Be- 
ing injuries  to  the  defendant  directly  traceable  to  the  issuing 
of  the  writ,  though  occurring  later  in  the  proceedings,  they  are 
covered  by  the  obligation  assumed  by  the  plaintiff  when  giv- 
ing the  bond.i 

AVhether  loss  of  time  and  business  maybe  computed  in  reckon- 
ing the  damages  incurred  by  a  wrongful  attachment,  depends 
upon  the  question  whether  such  injury  is  direct  or  remote. 
A  merchant  would  be  seriously  injured  by  the  seizure  of  his 
stock  and  the  closing  of  his  store  for  weeks  or  months,  though  the 
goods  themselves  should  not  be  damaged  or  deteriorated  in 
value  by  a  depreciation  of  the  price  while  in  the  custody  of  the 
officer.  In  such  case  it  seems  indisputable  tliat  damages  would 
be  recoverable  under  an  attachment  bond  as  ordinarily  written; 
but  merely  speculative  allegations  of  the  loss  of  profits  from 
such  cause  are  not  permissible  assignments  of  the  breach  of 
such  bond;  they  are  deemed  too  uncertain  and  remote. ^ 

The  plaintiff  obligates  himself  to  pay,  not  simply  in  case 
damages  result  because  of  his  false  afhdavit  as  to  the  debt  but 

>  Boatwright   v.   Stewart,  37  Ark.  Cox  v.   Robinson,  2  Rob.  (La.)  3i:j; 

614;  Patton  v.  Garrett,  Id.  COS;  Dent  Offiitt  v.  Edwards,  9  Id.  90;  Horn  v. 

V.  Smith,  53  Iowa,   ^62;     Frankel  v.  Bayard,  11  Id.  259;  McReady  v.  Rog- 

Stern,  44   Cal.  1G8;    Leah   v.   Green-  ers,  1  Neb.  124;  Williams  v.  Hunter, 

wood,  21  Ala. 49 L;  Flemings. Bailey,  3  Hawks.    (N.  C.)   545;  Campbell  «. 

44  Miss.  132;  Foster  v.  Sweeney,  14  Chamberlain,  10  Iowa,  337;  Abbotts. 

Serg.  &  R.  387;  Wallace  v.  Finberg,  Whipple,  4  Greene,    (la)  320;  Law- 

4G  Tex.  35;  Churchill  ^).  Abraham,  23  rence  v.  Hagerman,  56  111.  68;  Clark 

111.455;    Carpenter  v.  Stevenson,  6  ®.  Brott,  71  Mo.  473 ;  Frank  «.  Chaffe, 

Bush,  259 ;  Veiths  v.  Hagge,  8  Iowa,  34  La.  Ann.  1203. 
163;    Reidhar  v.  Berger,  8   B.  ]\[on.  ^  "vyjigoQ   ?j.  Manufacturing   Co.  88 

IGO;    Petit   v.  ]\tprcer,  Id.  51 ;    Dun-  N.  C.  5;  Marqueze  t?.  Soulheimer,  59 

ning   V.    Humphrey,   24    Wend.   31;  Minn.  430;  State   ■».  Thomas,  19  Mo. 

Raulett©.  Constance,  15  La.  Ann.  423;  613;    Craddock  v.  Goodwin,  54  Tex. 

29 


450  DAMAGES    UPON    DISSOLUTION. 

also  as  to  the  grounds  for  the  extraordinary  remedy;  and  there- 
fore, though  the  debt  be  due  and  owing  as  alleged,  he  is  liable 
if  the  writ  was  wrongfully  issued  because  of  the  false  statement 
as  to  the  defendant's  non-residence,  absconding,  or  fraudulent 
disposition  of  property,  i  His  animus  cannot  be  considered  in 
his  favor,  when  the  the  obligation  is  positive;  he  may  have 
sworn  in  good  faith  yet  been  mistaken  as  to  the  circumstances, 
both  with  regai'd  to  the  debt  and  the  ground,  or  either,  and  yet 
render  himself  liable  by  his  bond  to  damages. 2  But  if  swear- 
ing to  his  belief  is  all  that  is  required  for  the  issue  of  the  writ, 
and  the  bond  is  to  pay  damages  caused  by  a  wrongful  atttach- 
ment,  he  is  not  always  held  obligated  by  the  bond  because  the 
facts  proved  to  be  different  from  what  he  honestly  believed,  if 
he  had  good  reason  to  believe  them.* 

Sec.  4.    Becovery  of  Costs  and  Fees. 

The  bond,  as  ordinarily  written,  binds  the  obligor  to  make 
good,  not  only  the  loss  and  injury  done  to  property,  but  other 
pecuniary  losses  in  the  way  of  expenditure  when  they  are 
traceable  to  the  issuance  of  the  writ,  including  costs  of  court.'* 
Costs   follow  the  judgment,  and  may  be  understood  as  included 

578;  Floyd  1).  Hamilton,  33  Ala.  235;  tingly,  1  IMet.  (Ky.)  237.  But  in  a 
Pollock  «.  Gantt,  69  Ala.  373;  44  Am.  suit  for  malicious  attachment,  the 
Rep.  519;  Donuell  t.  Jones,  13  Ala.  anmtt*  becomes  important;  intent  to 
490;  Dall  V.  Cooper,  9  B.  J.  Lee,  574;  injure  must  be  proved  to  recover  ex- 
Myers  ■?).  Farrell,  47  Miss.  281;  Hal-  emplary  damages:  Nordhaus  ».  Pet- 
lock  tJ.  Belcher,  42  Barb.  199;  Camp-  arson,  54  Iowa,  08. 
bell  10.  Chamberlain,  10  Iowa,  337;  '  Bnrkhart  v.  Jennings,  2  W.  Va. 
Lowenstein  «.  Monroe,  55  Iowa,  82.  242;  Vorse  v.  Phillips,  37  Iowa,  428; 

1  Foster  n.  Sweeny,  14  Serg.  &  R.  Dent  «  Smith,  53  Iowa,  262;  (See 
387;  Sanders  v.  Hughes,  2  Brev.  (S.  Bnrton  ??.  Knapp,  14Iowa,  196;)  Wiu- 
C.)  495;  Drnmmond  ■«.  Stuart,  8  Iowa,  Chester  v.  Cox,  4  G.  Greene,  121; 
341;  Kirksey  v.  Jones,  7  Ala.  623;  Stevenson  ».  Bobbins,  5  Mo.  18.  Con- 
Watson  ».  Kennedy,  8  La.  Ann.  280.  tra:  Alexander  ».  Hutchinson,  9  Ala. 

2  Hayden  v.  Sample,  10  Mo  215;  825;  Temple  «.  Cocliran,  13  Mo.  116; 
Churchill  ®.  Abraham,  22  111.  455;  Dider  v.  Courtney,  7  Id.  500;  Chen- 
Tucker  I).  Adams,  52  Ala.  254;  Met-  ault  «.  Chapron,  5  Id.  438. 

calf  «.  Young,  43  Id.  643;  Lockhart  *  Lowenstein    «.  ]\Ionroe,  55  Iowa, 

«.    Woods,  38  Id.  631;  Alexander  v.  82;  Dunning  «.  Humphrey,  24  Wend. 

Hutchinson,  9    Id.   825;    Gaddis    v.  31;  Schuyler «.  Sylvester,   28  N.  J. 

Lord,  10  Iowa,  141;  Mitchell*.  Mat-  L.  487;    Hayden  «.  Sample,  10  Mo. 


RECOVKUY    OF    COSTS    AKD    FEES.  451 

in  the  hypothetical  obligation  assumed   by  the  plaintiff  in  the 
bond. 

Counsel  fees  for  the  defense  of  the  attadiment  suit,  and  of 
injunction  suits  under  similar  conditions,  have  frequently  been 
consiilered,  in  estimating  damages,  as  embraced  under  the  obliga- 
tion of  the  bond.i  If  such  fees  are  taxed  with  the  costs,  they 
are  as  clearly  recoverable  from  the  obligor  as  the  bills  of  the 
clerk  and  sheritf.  But  neitlier  tlie  former  nor  the  latter  are 
taxable  or  recoverable  when  they  are  overcharged.  It  is  only 
I.'gal  costs  which  the  obligor  is  bound  for.  So  far  as  court 
charges  are  concerned,  they  are  usually  embraced  in  the  judg- 
ment, so  that  if  the  attachment  is  dissolved,  they  are  collected 
of  the  plaintiff  by  the  officers,  and  there  is  no  contest  to  fol- 
low concerning  them  between  the  parties  litigant.  But  if  the 
defendant  has  paid  them  and  afterwards  seeks  to  recover  them 
of  the  plaintiff,  he  can  only  recover  legitimate  costs.  It  does 
not  matter  that  he  has  paid  them  and  that  he  exhibits  receipts 
therefor:  he  should  have  contested  the  illegal  charo-es.  It 
does  not  even  matter  if  the  illegal  costs  have  been  taxed  by  the 
court;  for  the  taxing  was  a  judgment  to  whicli  the  plaintiff' 
was  not  a  party.  "Were  the  plaintiff  a  party  to  it,  the  case 
would  be  different.  So,  of  the  taxing  of  counsel  fees.  The 
court  ought  to  fillow  reasonable  charges  only;  but  where  the 
law  has  provided  a  fee-tariff,  and  the  court  allows  an  excess, 
the  defendant,  if  obliged  to  pay,  cannot  recover  of  the  plaintiff' 


Slo;  Kelly  v.  Beaucliamp,  59  Id.  178;  Rae  v.  Brown,  12  Id.  181 ;  Phelps  v. 
Winsor  v.  Orcutt,  11  Paige,  578;  Coggesliall,  13  Id.  440;  Transit  Co. 
Hellman  v.  Fowler,  24  Ark.  2:}5;  v.  McRea,  Id.  214;  Burton  v.  Smith, 
Trapnall  v.  McAfee,  3  Met.  (Ky.)  34;  49  Ala.  293;  Boiling  v.  Tate,  65  Id. 
Nockles  V.  Eggspieler,  53  Iowa,  730;  417;  39  Am.  Rep.  5;  Seay  v.  Green- 
Bennett  V.  Brown,  20  N.  Y.  99;  wood,  21  Id.  491;  Brown  i;  Jones,  5 
Campbell  v.  Chamterlain,  10  Iowa,  Nev.  374;  Voi-se-c.  Phillips,  37  Iowa, 
337.  428;  Bank  c.  Heath,  45  N.  H.  524; 
'  Kockles  V.  Eggspieler,  53  Iowa,  Morris  «.  Price,  2  Bluck^  457;  Mur- 
730;  Weller  v.  Hawes,  49  Iowa,  45;  ray  v.  Munford,  2  Cow.  400;  Shultz 
Hayden  v.  Sample,  10  Mo.  215;  Ray-  v.  Morrison,  3  Met.  (Ky.)  98;  Boyd  ». 
mond  V.  Green,  12  Neb.  215;  (41  Am.  Brisban,  11  Wend.  229;  Fitzpatrick 
Rep.  7G3;)  Wilson  «.  Root,  43  Ind.  ■».  Flagg,  12  Abb.  Pr.  189;  Corcoran 
486 ;  Littlejohn  v.  Wilcox,  2  La.  Ann.  v.  Judson,  24  N.  Y.  106, 
6.0;    Jones  v.  Doles,  3  Id.   588;  Mc- 


452  DAMAGES    UrON    DISSOLUTION. 

on  his  "bond,  at  the  termination  of  the  suit  in  the  defendant's 
favor,  any  more  than  the  Ici^al  fee,  provided  the  plaintiff  was 
not  concluded  by  the  allowance  as  a  party  to  the  rule. 

Whatever  is  rightfully  taxed  as  fees  and  costn  may  be  recov- 
ered on  the  bond,  if  the  defendant  is  responsible  for  them  to 
his  counsel  or  to  the  officers  of  court,  whether  he  has  already 
paid  them  or  not.^  If  either  counsel  or  officer  has  released 
him  from  the  payment  he  cannot  recover  on  the  bond  for  the 
sum  released.  If  he  has  already  paid,  that  fact  would  not 
enable  him  to  make  the  obligor  of  the  bond  refund  to  him  an 
equal  sum,  if  the  payment  was  illegal  or  excessive.  The  pay- 
ment should  be  considered  as  a  circumstance  in  his  favor,  show- 
ing his  good  faith,  and  proving  how  much  he  has  lost  by  the 
wrongful  attachment;  but  he  should  have  performed  the  very 
disagreeable  duty  of  oppoping  the  illegal  bill  before  he  paid  it; 
and,  if  he  has  avoided  such  duty,  he  cannot  recover  of  the 
plaintiff  merely  because  he  has  paid  it.  The  plaintiff  would 
have  the  same  right  to  contest  it  that  the  defendant  previously 
had. 

Are  untaxed  counsel  fees  recoverable  on  the  bond?  This  has 
been  a  mooted  question,  and  it  requires  notice  more  at  length 
than  most  of  the  others  arising  in  actions  on  such  instru- 
ment. The  obligation  is  to  pay  wdiatever  damages  the  obligee 
may  suffer  by  reason  of  the  wrongful  attachment.  The  obligee 
is  driven  to  the  defense  of  the  suit  and  must  have  counsel  and 
must  pay  for  it  and  ought  to  be  reimbursed  for  such  forced 
outlay  as  for  any  other  when  the  fee  is  reasonable  and  its  pay- 
ment obligatory.  Such  loss  of  money  is  a  consequence  of  the 
wrongful  attachment.  "The  necessity  of  paying  such  counsel 
fees  is  an  actual  damage  which  the  defendants  have  sustained. 
*  -5^  *  *  It  is  not  a  mere  matter  of  discretion,  as  the  con- 
dition of  the  bond  is  imperative,  that  the  obligors  in  the  bond 
shall  pay  *  *  *  *  such  damages "  as  the  obligees  may 
sustain  by  reason  of  the  injunction.     The  action  which  Chan- 


1  Jones  V.  Doles,  3   La.   Ann.   583.       actual  damage  and  not  recoverable. 
In  Patton  v.  Garrett,   37   Ark.  GOo,  it  *  ilaydeu  v.  Sample,  10  Mo.  2io. 

was  held  that  attorneys'  fees  are  not 


KECOVERY    OF    COSTS    AND    FEES, 


453 


ccllor  Walworth  was  considerini^  when  he  made  the  aljove 
quoted  remarks,  was  upon  an  injunction  bond,  hut  it  involved 
the  principle  here  under  consideration. ^  lie  goes  on  to  reason 
that  under  a  covenant  of  warranty  in  a  conveyance,  the  evicted 
grantee  may  recover  of  his  gnuitor  the  necessary  counsel  fees 
which  he  has  paid  in  defending  the  title  as  a  part  of  the  dam- 
ages sustained  by  the  bi-each  of  warranty,  and  that  the  right  to 
recover  such  fees  in  the  bond  suit  is  the  same  in  principle. 

If  there  is  perfect  analogy  between  a  suit  on  an  attachment 
bond  and  one  on  an  injunctioji  bond,  no  conclusive  argument 
can  be  based  on  such  analogy  to  prove  that  counsel  fees  are 
allowable;  for,  though  they  have  often  been  held  so,*  they  have 
sometimes  been  held  to  the  contrary. ^  And,  with  reference  to 
the  argument  drawn  from  actions  by  a  vendee  on  the  breach  of 
the  covenant  of  warranty,  it  is  not  everywhere  settled  that  the 
attornej'  fees  not  taxed,  Mdiich  the  ejected  grantee  has  been 
obliged  to  pay  in  defending  the  title,  can  be  recovei'ed  as 
damaires.* 


'  Edwards  v.  Bodine,  11  Paige, 
223. 

2  Corcoran  v.  Judson,  24  N.  Y.  lOG; 
Bank  v.  Heath,  45  N.  H.  5i4;  Brown 
V.  Jones,  5  Nev.  374;  Fitzpatrick  v. 
Flagg,'12  Abb.  Pr.  It9;  McRae  v. 
Brown,  12  La.  Ann.  181;  Murray  «. 
Muuford,  2  Cow.  400;  Boyd  v.  Bris- 
ban,  11  Wend.  220;  Boiling  v.  Tate, 
Co  Ala.  417;  39  Am.  Rep.  5;  Holmes 
V.  Weaver,  .52  Ala.  516;  Garrett  v. 
Logan,  19  Id.  344;  Miller®.  Garrett, 
35  Id.  96 ;  Pounds  v.  Hamner,  57  Id. 
342. 

3  Oliphant  v.  Mansfield,  36  Ark. 
191;  Oelrichs  -o.  Spain,  15  Wall.  211; 
Ferguson  v.  Baker,  24  Ala.  402;  Bul- 
lock V.  Ferguson,  30  Id.  227. 

*  In  Turner  v.  Miller,  42  Te.v.  418: 
19  Am.  Rep.  47,  tliis  subject  is  learn- 
edly discussed,  and  fees  disallowed. 
lu  the  opinion,  and  in  a  note  ap- 
pended by  the  reporter  in  the 
American    Reports,     the    following 


cases  are  cited  which  favor  the  allow- 
ance: Rickeit  V.  Snyder,  9  Wend. 
422;  Rowe  v.  Heath,  23  Tex.  620,  on 
special  promise  by  grantor;  Staats  v. 
E.xeciUors  of  Ten  Eyek,  3  Caines, 
115-117;  Robertson  v.  Lemon,  2 
Bush,  301 ;  Dalton  v.  Bowker,  8  Nev. 
190;  Keeler  v.  Wood,  30  Vt.  242; 
Smith  V.  Sprague,  40  Id.  43.  Refer- 
ence is  made  in  the  note  to  McGary 
V.  Hastings,  39  Cal.  3G0:  2  Am.  Rep. 
456;  Levitzky  v.  Canning,  33  Cal.* 
299;  Harding  «.  Larkin,  41111.413; 
Mayor  v.  Dunnavant,  25  111.  362; 
Hoot «).  Spade,  20  Ind.  326;  McAl- 
piue  t).  Woodruff,  11  Ohio  St.  120; 
and  to  the  following  to  the  contra: 
Hale  V.  The  City  of  New  Orleans,  13 
La.  Ann.  502;  Sarpy  v.  New  Orleans, 
14  Id.  311;  Williams  B.  Le  Blanc,  Id. 
757;  Yokum  v.  Thomas,  15  Iowa, 
67 ;  Clark  v.  Bi-ott,  71  Mo.  473 ;  Frank 
V.  Challe,  34  La.  Ann.  1203. 


454  DAMAGES    UPON    DISSOLUTION. 

The  injustice  of  not  reinnneniting  tlie  grantee  for  wliatever 
lie  is  compelled  to  pay  by  reason  of  a  breach  of  warranty  on 
the  part  of  the  grantor,  mnst  be  apparent  to  the  candid  mind; 
and  wliat  he  is  obliged  to  pay  to  his  counsel  ought  not  to  con- 
stitute any  exception.  Ordinarily,  the  burden  of  the  defense 
of  an  ejectment  suit  falls  upon  the  grantor  wlio  is  called  in 
warranty,  but  the  grantee  is  in  court  and  lias  rights  to  be  looked 
after,  and  his  interests  would  be  likely  to  suffer  were  they  not 
protected  by  a  comj)eteiit  representative. 

If  the  analogy  between  such  suits  by  grantees  and  suits  on 
injunction  bonds,  on  the  one  side,  and  those  now  under  treat- 
ment, on  the  other,  were  perfectly  established;  if  in  all,  coun- 
sel fees  were  admitted  to  be  recoverable  as  damages,  it  would 
not  follow  that  whatever  fees  have  been  paid  or  agreed  upon  by 
the  defendant  and  his  counsel,  are  recoverable  from  the  obligor 
of  the  attachment  bond.  Indeed,  in  none  of  the  classes  of 
cases  above  noticed  are  unreasonable  fees  thus  collectible. 
What  is  and  what  is  not  unreasonable  is  a  matter  for  decision. 
A  fee  may  seem  large  yet  not  be  unreasonable.  A  fee  may  be 
what  the  defendant  of  the  attachment  suit  was,  by  reason  of 
the  attachment,  obliged  to  pay  in  order  to  get  the  best  aid.  He 
is  entitled  to  the  best.  He  ought  to  be  reimbursed  for  what 
the  ablest  professional  services  rendered  have  reasonably  cost 
him.  But,  however  valuable  the  services,  no  damages  can  be 
recovered  if  they  were  gratuitously  rendered. 

Sec.  5.    Exemplary  Damages. 

iittaching  without  probable  cause  is  legally  deemed  mali- 
cious, and  a  common  law  action  for  damages  will  lie.  Such 
action  is  not  limited  by  the  sum  nominated  in  the  attachment 
bond,  but  the  injured  defendant  may  claim,  and  the  jury  may 
award,  such  exemplary  damages  as  may  be  pi'oper  to  remuner- 
ate him  for  injury  to  himself  and  his  property  and  punish  the 
attaching  creditor  for  his  wanton  abuse  of  the  extraordinary 
remedy  to  which  he  has  resorted  for  the  recovery  of  his  ordinary 
debt. 

Although  suits  of  this  kind   for  malicious  attachments  are 


EXEMPLARY    DAMAGES.  455 

not  strictly  within  the  purview  of  a  treatise  on  the  hiw  of 
attachment,  it  may  be  well  to  notice  theui  briclly  in  this  con- 
nection. 

Whether  the  damages  to  l>e  awarded  are  actual  or  exemplary, 
depends  upon  the  question  of  inalice;  and  this  is  often  referable 
to  the  circumstances  of  the  case.  If  the  attaching  creditor 
acts  under  legal  advice,  that  is  often  considered  indicative  of 
good  intent  limiting  his  liability  to  actual  damages  when  the 
proceeding  is  found  wrongful.  *  This  circumstance  in  his  favor 
is  not  always  conclusive,  however; 2  for  all  suits  brought  by 
attorneys  may  be  presumed  to  be  instituted  under  their  advice, 
and  it  would  not  do  to  attribute  good  motives  to  plaintifi's  by 
reason  of  that  fact,  if  there  are  other  circumstances  tending  to 
show  a  malicious  spirit  Both  client  and  counsel  may  be  actu- 
ated by  such  spirit  and  both  be  amenable  to  exemplary  dam- 
ages.* The  principal  is  not  to  be  deemed  to  have  been  malicious 
because  his  agent  or  attorney  is  ])roved  to  have  been  so.* 

The  spirit  by  which  the  attaching  creditor  was  actuated  in 
euinor  out  his  writ  may  be  inferred,  in  a  great  measure,  from 
what  is  proved  as  to  his  honest  belief  of  his  right  of  action 
when  he  instituted  it.  If  he  had  not  only  an  honest  but  a 
reasonable  opinion  that,  under  the  existing  fkcts  as  he  under- 
stood them,  he  was  entitled  to  the  relief  which  he  sought,  he 
cannot  be  held  to  have  been  actuated  by  malice,  though  the 
attachment  itself  may  have  been  illegal,  unjustiliable  and 
injurious.  5 

The  burden  of  proof  is  on  him  who  claims  exemplary  dam- 
ages to  show  that   the  attachment  suit  was  instigated  or  insti- 

»  McDnniel  v.  Gardner,  34  La.  Ann.  Barrett  v.  Spaids,  70  111.   408;  Alex- 

S41;  Dickinson   v.  Maynaid,  20  La.  ander  «.  Harrison,  88  Mo.   258;  Wil- 

Ann.66;  Teal  ®.  Lyons,  30  La.  Ann.  liams  11.  Hunter,  3   Hawks,    (N.   C.) 

Part   I,  1140;   Raver  v.   Webster,   3  M't;  Smith  v.  Story,   4   Hump.  169; 

Iowa,    502;    Roach   v.   Brannon,  57  Donnell  «.  Jones,  13  Ala.  490;  White 

Miss.  490;    Alexander  v.  Harrison,  t;.  Wyley,  17  Id.  167;   Wood  v.   Bar- 

38  :Mo.  258.  ker,  37  Id.  60;  McCullough  v.  Grish- 

2  Raven-ra  «.  Mackintosh,  2  Barn.  hobber,  4  Walts  «&  Serg.  201;  Nord- 
&  Cressw.  693.  haus  v.  Peterson  Brothers,  54  Iowa, 

3  AVood  V.  Weir,  5  B.  Mon.  544.  68 ;  Dent  v.  Smith,  53  Id.  262;  Vorse 
*  Willis «.  McNeill,  57  Tex.  465.  v.  Phillips,  :57  Id.  4-28:  Kenue.o'  <■'- 
6Spengler  v.  Davy,  15   Gratt.  381;       Meachum,  IS  Fed.  H.  312. 


456  DAMAGES    UrON    DISSOLUTION. 

tuted  by  the  defendant,  that  it  was  -withont  probable  cause,  that 
it  has  been  terminated  without  jud^-inent  justifying  the  attach- 
ment, and  that  he  lias  been  injured:'  thereupon,  it  devolves  on 
the  defendant  to  prove  good  motives  by  establishing  fails  tend- 
ing to  that  end,  if  he  would  thus  avoid  the  consequences  of 
his  wrongful  attachment.  ^ 

In  defending  against  a  suit  for  exemplary  or  vindictive  dam- 
ages, the  defendant  may  prove  that  there  was  debt  due  him,  if 
that  has  not  been  decided  adversely  to  him  in  the  attachment 
suit — if  he  was  merely  non-suited  therein;  he  may  show  any- 
thing which  will  establish  a  lawful  animus  on  his  part,  since 
malice  is  necessary  to  his  liability. ^  It  has  been  held  that  to 
support  an  action  for  malicious  prosecution,  it  must  be  shown 
not  only  that  there  was  no  cause  of  action  but  that  the  prose- 
cutor knew  it  and  acted  maliciously;*  and  such  showing  may 
be  met  by  counter  evidence  showing  good  intent,  advice  of 
counsel,  etc.^ 

"  The  malice  necessary  to  be  shown  *  *  *  is  not  neces- 
sarily revenge  or  other  base  and  malignant  passion.  Whatever 
is  done  wilfully  and  purposely,  if  it  be  at  the  same  time  wrong 
and  unlawful,  and  that  known  to  the  party,  is  in  legal  contem- 
plation malicious.  That  which  is  done  contrary  to  one's  own 
conviction  of  duty,  or  with  a  wilful  disregard  of  the  rights  of 
others,  whether  it  be  to  compass  some  unlawful  end,  or  some 
lawful  end  by  unlawful  means,  or     "^     *     *     *     to  do  a  wrong 

iWood  v.  Weir,   5  B.  Mon.   544;  ^  Carey  v.  Guunison,  51  Iowa,  202; 

Pixley  V.  Keed,  26  Minn.   80;  Sloan  Kirkseyy.  Jones,   7  Ala.  622;    Don- 

».   McCracken,   7    B.J.    Lea,    6J6;  nell  ».  Jones,    13   Id.   490;   White®. 

Bump  D.  Belts,  19  Wend.  421;  Dent  Wyley,  17  Id.  167;  Wood   v.  Barker, 

«.  Smith,   53  Iowa,   150;    Feazle  v.  37  Id.  60;  Lockhart «.  Woods,  38  Id. 

Simpson,  2  111.    30;  Walser  «.  Thies,  631;  Spengler  v.    Davy,  70  111.  408; 

56   Mo.  89;  O'Grady  v.    Jrlian,   34  Melton  v.   Troutman,   15   Ala.   535; 

Ala.  88;  Lawrence  v.  Hagerman,  56  Morrison  v.  Crawford,  7  Oregon,  472. 

111.68;   Ives  «.  Bartholomew,   9   Ct.  ^  Lindsay  «.  Larned,  17  Mass.  *i90, 

309;  Tomlinson  «.  Warner,   9   Ohio,  *197;  Bond  «.  Ward,  7  Id.  *130. 

103;  Williams  i.  Hunter,  3   Hawks,  *  Stone  v.  Swift,  4  Pick.  393. 

545;  Sledge  V.  McLaren,  29   Ga.   64;  'Id. 
Wiley  V.  Trauwick,  14  Tex.  663. 


EXEMPLARY    DAl^rAGES.  457 

and  unlawful  act  knowing  it  to  be  such,  constitutes  legal 
malice.'"  1 

Malice  is  not  necessarily  inferable  from  Avant  of  probable 
cause.  2 

Neither  party  can  reopen  what  was  settled  by  the  attachment 
suit.  The  judgment  therein  is  res  judicata  as  to  them  when 
the  proceedings  were  inter  partes.  The  truth  of  the  attaching 
creditor's  allidavit  cannot  be  questioned  after  it  has  been  tra- 
versed and  sustained.  The  final  judgment  is  conclusive  between 
the  parties  as  to  whether  the  attachment  was  rightfully  or 
wrongfully  sued  out;  and  therefore  it  cannot  be  collaterally 
assailed  by  either  the  plaintiff  or  the  defendant  in  the  subse- 
quent damage  suit.  If  held  rightfully  sued  out  and  prosecuted, 
it  is  a  bar  to  any  action  for  exemplary  damages;  but  if  there 
has  been  judgment  for  the  attachment-debtor,  that  merely  estab- 
lishes that  the  attachment  was  wrongful;  it  leaves  open  the 
question  whether  it  was  malicious,  and  therefore  suit  will  lie 
lor  exemplary  damages. 

Judguient  against  the  attaching  creditor,  if  accompanied  by 
a  judicial  entry,  made  contradictorily  between  the  parties, 
decreeing  that  there  was  probable  cause  for  the  creditor's  suing 
out  the  attachment,  will  operate  as  a  perfect  bar  to  a  subsequent 
action  for  exemplary  damages,  wherever  such  practice  author- 
izedly  prevails. 

Non-suit,  discontinuance,  settlement  by  compromise,  or  any 
disposition  of  the  attachment  suit  not  expressly  or  impliedly 
by  contract  precluding  the  alleged  debtor  from  his  action  for 
damages,  constitutes  no  bar;  nothing  is  thus  finally  adjudicated; 
and  therefore  there  is  nothing  to  be  urged,  by  reason  of  any 
such  disposal  of  tlie  cause,  as  a  reason  why  an  injured  debtor 
should  not  be  heard. 

It  must  be  noted  that  oxAj  what  is  adjudicated  finally 
between  the  parties  is  a  bar  to  the  action  for  exemplary 
damages:  hence,  even  a  judgment    in  favor  of  the  attaching 

» Wills  V.  Noyes,  12  Pick.  324,  328,       190;  Harman  v.  Tappemlen,    1  East, 
citing  U.    S.  V.   Kuggles,    5   3Iasou,       567,  note. 
192 ;  Looker   o.  Halcomb,  4  Biugh.  ^  Willis  v.  McNeill,  57  Tex.  4G5. 


458  DAMAGES    UPON    DISSOLUTION. 

creditor  woul(3  he  no  bar  to  an  action  against  him  for  libel 

committer!  Uy  written  and  published  charges  against  the  debtor'3 
character  and  reputation,  when  such  charges  are  wanton,  unnec- 
essary, and  no  basis  upon  Avhich  the  judgment  sustaining  tlie 
attachment  is  rendered;  wlien  the  court,  in  giving  reasons  for 
judgment,  repudiates  such  charges  as  unproved,  and  places  the 
decree  upon  other  grounds.  For  instance,  if  the  attaching 
creditor  should  charge  that  his  alleged  debtor  is  guilty  of  not 
only  legal  but  moral  fraud,  and  fail  to  sustain  that  allegation, 
but  should  gain  his  cause  simply  on  the  facts  of  indebtedness 
and  the  non-resideT?ce  of  the  debtor,  the  judgment  would  be  no 
bar  to  a  subsequent  suit  against  him  for  exemplary  damage  for 
such  wanton,  false,  slanderous,  malicious  and  wholly  unneces- 
sary assault  upon  character. 

When  not  inter  partes,  the  judgment  in  the  attachment  suit 
may  be  collaterally  attacked  by  the  owner  of  the  condemned  re*, 
except  wdth  reference  to  the  res  itself.  As,  in  such  suit,  there 
can  be  no  personal  judgment  against  the  merely  nominal  defend- 
ant, he  is  not  estopped  from  investigating  charges  made  against 
himself  when  they  were  void  of  bearing  against  the  property 
attached.  If,  being  notified  by  publication,  he  failed  to  respond, 
and  his  attached  property  was  condemned  to  pay  his  debt,  upon 
proof  of  the  indebtedness  and  of  his  fraudulent  disposition  of 
property,  his  absconding  to  avoid  creditors  or  the  like,  he  can- 
not collaterally  attack  the  judgment;  for  a  decree  m  rem  is 
res  judicata  as  to  him;  and  it  would  be  so  against  all  the  world 
in  a  proceeding  to  fix  the  status  of  forfeited  property  in  which 
all  are  notified.  But  the  attachment-debtor  is  not  "  in  court 
by  his  property,"  and  therefore  the  judgment  is  a  nullity  so  far 
as  it  goes  beyond  the  res  of  the  action,  and  all  the  excess  may 
be  collaterally  attacked. 

When  the  judgment  is  against  both  the  debtor  and  his 
attached  property;  that  is,  when  both  are  in  court  and  the  decree 
is  against  him  with  privilege  upon  the  thing  attached,  and 
when  the  creditor's  allegations  and  prosecution  of  his  cause 
have  been  sustained  by  the  court,  the  decree  is  res  judicata, 
and  a  complete  bar  to  any  subsequent  action  either  for  actual 
or  exemplary  damages. 


DEFAULT    AFTEK    SEliVICE.  459 


CHAPTER    Xy. 

JUDGMENT    SUSTAINING    ATTACHMENT     AND    PERFECTING 

THE  LIEN. 


1. 

Defoult  after  Service. 

§13. 

Sale    by  the 

Debtor    before 

2. 

Decree  nisi. 

Seizure. 

3. 

Default    after    Seizure    and 

13. 

Assignment. 

Publication. 

14. 

Final     Decree 

,    with     Privi. 

4. 

Trial  upon  Issue  Joined. 

lege. 

5. 

Intervention. 

15. 

Final     Decree     against     the 

6. 

Junior  Attacliers. 

Garnishee. 

7. 

Chnmants. 

16. 

Garnishee     Protected      by 

8. 

Priority  of  Seizure. 

Judgment. 

9. 

Priority  of  Garnishment. 

17. 

Execution. 

10. 

Siuiultaiieous  Seizures. 

18. 

Garnishment 

lu  Execution. 

11. 

Competition   witli    Mortgage 
Liens. 

19. 

Concursus. 

Sec.  1.    Default  after  Service. 

After  service,  or  after  the  entry  of  appearance,  the  defendant 
may  be  defaulted  if  he  does  not  plead  within  the  given  time. 
This  is  not  different  in  attachment  suits  from  what  it  is  in 
ordinary  actions  so  far  as  the  personal  cause  is  concerned.  The 
court's  jurisdiction  over  the  defendant  is  complete  when  he  has 
been  served,  or  when  he  has  appeared  whether  served  or  not. 
And  the  conjunction  of  seizure  avid  service,  (or  seizure  and 
appearance  without  service,)  gives  perfect  jurisdiction  over  the 
ancillary  suit.  The  property,  in  that  subordinate  proceeding, 
can  answer  only  by  its  owner;  ai]d  there  may  be  default  when 
he  does  not  answer  within  the  legal  delay.  Both  the  principal 
and  ancillary  suits  being  in  the  same  proceeding,  one  answer 
will  suffice  to  prevent  judgment  by  default  in  both.  When 
they  are  separate,  the  defendant  of  the  main  suit  should  plead 
in  botli;  but  should  he  successfully  defend  in  the  personal  suit, 
the  other  Avould   fall  to  the  ground  with  it  whether  tliere  was 


460  JUDGMENT    SUSTAINING    ATTACHMENT. 

any  denial  of  the  alleged  grounds  for  attachment  or  not;  it 
would  so  fall  in  consequence  of  its  ancillary  character — tiiere 
being  no  valid  judgment  against  the  property  to  perfect  a  lieu 
in  security  of  a  debt  if  there  is  no  debt. 

Judgment  by  default  should  not  be  entered,  notwithstanding 
service  may  have  been  made,  if  the  plaintiff  has  filed  no  peti- 
tion or  complaint  beyond  the  affidavit. ^  In  such  case,  there  is 
nothing  to  be  answered. 

The  confirmation  of  default,  after  the  legal  delay,  by  due 
proof  of  the  allegations  of  the  petition,  is  a  final  judgment  in 
cases  where  the  duly  summoned  defendant  has  failed  to  appear, 
so  far  as  the  court  trying  the  cause  is  concerned.  If  never 
appealed,  or  if  affirmed  on  appeal,  such  judgment  is  in  all  re- 
spects as  good  and  as  conclusive  as  if  rendered  after  issue  joined. 
It  is  true  that  the  defendant  may  set  aside  the  default  after  such 
confirmation,  upon  proper  showing,  within  such  period,  and 
under  such  circumstances  as  the  statute  of  his  State  may  have 
provided  for  such  case;  but  he  has  no  "year  and  a  day"  within 
which  to  appear  and  bond  and  try  the  cause  over  again.  He 
has  been  served,  or  has  entered  appearance;  and  he  cannot  com- 
plain of  his  own  laches  and  even  contumacy  in  failing  to  plead. 
He  had  his  "day  in  court"  in  the  opportunity  afforded,  and 
he  has  no  one  but  himself  to  blame  for  not  embracing  that 
opportunity.  He  must  put  himself  rectus  in  curia  by  making 
the  proper  showing,  purging  himself  of  contumacy,  and  filing 
his  answer  under  leave,  in  order  to  have  the  cause  re-opened  so 
that  he  may  exercise  all  the  rights  and  privileges  of  a  litigant. 

The  privilege  of  appearing  within  "a  year  and  a  day"  after 
default,  (as  in  the  iiext  section,  and  elswhere  shown,)  is  when 
the  proceeding  is  as  under  the  custom  of  London,  and  under 
the  practice  of  States  following  that  custom;  but  it  is  not 
accorded  under  the  prevalent  practice  in  this  country. 

Sec.  2.     Decree  nisi. 

When  the  summons  has  been  returned  unserved,  and  property 
is  afterwards  attached  in  the  hands  of  third  persons,  or  otherwise, 

'Jones  V.  Howard,  42  Ala.  483;  «.  Haid,  49  Mich.  299 :  all  precedent 
Peun  V.  Edwards,  Id.  055;  Woolkius      couditions  must  be  observed. 


DECREE    NIPT. 


4r,i 


and  no  notice  hv  pnl)l!cntion  is  innde  and  no  appcarnnce  is 
entered,  a  jnduiiuMit  by  det'anlt  is  not  inimcdiaiuly  allowable: 
not  till  notice.  AVho  is  in  defanlt?  If  neither  cited  or  noti- 
fied, the  debtor  is  not  in  default  for  non-appearance.  lie  can- 
not be  in  contumacy  for  not  obeying  a  summons  never  served; 
not  heeding  an  invitation  never  extended. 

The  custom  of  London  allows  judgment  by  defiiult  after  ver- 
bal proclamation  repeated  on  successive  court  days;  the  defend- 
ant, not  responding  to  the  oral  call,  may  be  defaulted.  But  that 
,  custom  never  allowed  linal  judgment  under  such  circumstances. 
The  case  was  open  for  a  year  and  a  day  within  which  the  defend- 
ant might  appear,  enter  bail  and  plead.  The  creditor  could  not 
obtain  attached  property  from  the  court  for  sale  without  giving 
security  to  protect  the  owning  absentee,  or  presenting  pledges 
to  restore.  Pledgors  entered  into  recognizance  to  pay  the 
owner  so  as  to  make  good  liis  wrongs  in  case  the  judgment 
should  be  set  aside.  And  such  of  our  own  States  as  allow  like 
defanlt  and  sale  without  service  or  notification,  still  require  that 
the  plaintiff  should  give  security  so  as  to  protect  the  defendant 
should  he  appear  within  a  year.  At  the  expiration  of  the  time, 
the  judgment  is  deemed  final.  Such  practice,  though  seemingly 
amounting  to  the  taking  of  one's  property  without  due  course 
of  law,  was  in  full  exercise  when  the  constitution  of  the 
United  States  was  adopted.  It  may  be  plausibly  and  perhaps 
satisfactorily  argued  that  the  framers  of  that  instrument  did  nut 
design  to  inhibit  such  procedure.  That  was  one  of  the  ways  in 
which  law^  was  then  administered  in  courts  of  justice;  and, 
ever  since,  it  has  been  thus  administered  in  some  of  the  States 
in  cases  of  foreign  attachment;  and,  in  one  or  two,  even  in 
domestic  attachment. 

In  Pennsylvania,  attached  property  of  a  debtor,  who  absconds 
or  conceals  himself  to  defraud  creditors,  is  delivered  to  three 
trustees,  appointed,  by  the  court,  who  notify,  by  publication,  all 
debtors  of  the  defendant  and  all  holders  of  his  property  to  pay 
or  deliver  to  them;  and  all  his  creditors  to  present  their  claims. 
These  trustees  are  really  judicial  assignees;  the  estate  of  the 
attachment-defendant  legally  rests  in  them  for  the  purpose  of 
administration;  they   sue,  in   behalf  of  the  estate  and  for  the 


403  JUDGMENT    SUSTAINING    ATTACHMENT. 

\i?e  cf  tlie  creditors  in  tliclr  own  names;  tliej'-  summon  and 
examine  persons  supposed  to  be  indebted  to  the  defendant; 
thej  issue  warrants  for  the  seizure  of  goods  and  cliattels,  boohs, 
papers,  etc.,  and  may  cause  stores,  warehouses,  boxes,  etc.,  to  be 
broken  open  when  that  is  necessary  to  the  execution  of  a  war- 
rant. They  tahe  charge  of  the  real  property  of  the  debtor  when 
vested  in  them  in  like  manner;  sell  and  dispose  of  it  as  admin- 
istrators;  redeem  mortgaged  property  when  necessary;  and 
finally  adjust  the  several  claims  of  the  creditors  after  having 
accorded  a  hearing  to  those  who  have  appeared,  and  then  file  their 
report  in  the  office  of  the  prothonotary.  Exceptions  to  tlie 
report  may  be  filed,  for  the  consideration  of  the  court.  If  none 
are  filed,  the  trustees  disti'ibute  the  fund  derived  from  the  estate 
of  the  debtor  among  those  who  have  established  their  claims  by 
proof,  without  preference.  There  is  preference  given  to  the 
first  attacher  when  the  process  is  under  the  statutes  governing 
foreign  attacliment,  which  is  quite  different,  in  this  State,  from 
domestic.     The  method  above  described  is  not  exclnsive. 

In  Delaware,  domestic  attachment  has  man}'-  of  the  features 
M-hich  distincrnish  it  in  Pennsylvania.  There  are  three  auditors 
who  exercise  functions  similar  to  those  of  the  trustees  above 
mentioned;  such  as  notifying  creditors,  auditing  claims;  dis- 
tributing the  proceeds  of  the  attached  property,  etc.  They  are 
not,  however,  administrators  of  the  estate  of  the  defendant,  in 
any  sense;  their  powers  are  more  limited  than  those  of  the 
trustees  in  Pennsylvania.  In  the  distribution  of  the  proceeds, 
they  award  a  double  portion  to  the  attaching  creditor  who  has 
prosecuted  his  suit  to  judgment,  if  such  portion  does  not  exceed 
his  adjudged  claim;  but  he  is  not  necessarily  paid  in  full  as  a 
lien-holder  by  reason  of  his  attachment.  Delaware,  like  Penn- 
sylvania and  some  other  States,  distinguishes  between  domestic 
and  foreifu  attachment;  but  in  both,  the  absent  debtor  is  secured 
in  case  he  appear  and  set  aside  the  judgment  and  disprove  the 
debt  within  a  year.  In  domestic  attachments,  the  creditors 
receiving  proceeds  from  the  auditors,  must  enter  into  recogni- 
zance, with  surety,  to  secure  the  protection  of  the  debtor  by  the 
refunding  of  tlie  sum  received  in  case  he  should  appear  and 
displ•o^'e  the  indel)tedness  within  that  time;    and,  in  case  of 


DECREE  Kisr.  403 

forciLTi  attaclimcnt,  tlie  plaintiff  must  enter  into  like  recog- 
nizance. 

In  1si}\v  Jerr^cy,  tlie  proceeding  is  similar  to  tliat  of  the  two 
States  aljove  mentioned.  The  court  appoints  an  auditor  to 
examine  all  claims,  adjust  and  report  ujton  tliem.  His  powers 
much  resemble  those  of  the  trustees  appointed  in  Pennsylvania. 
The  auditors  issue  citations,  warrants,  etc.;  examine  wit- 
nesses and  interrogate  persons  supposed  to  be  cognizant  of  the 
affairs  of  the  defendant;  investigate  supposed  fraudulent  trans- 
acti<jns;  cause  the  seizure  of  unsurrendered  pro])erty,  and  effect 
it  Ly  breaking  into  stores,  warehouses,  boxes,  etc.,  v/hen  neces- 
sary; bring  suits,  under  certain  restrictions;  sell  the  property 
of  the  defendant,  including  land;  and  distribute  the  proceeds 
among  the  creditors  in  dividends  proportionate  to  their  estab- 
lished demands.  The  judgment  does  not  preclude  the  absent 
defendant  from  coming  within  a  year  and  suing  those  who  have 
received  dividends,  as  creditors  under  the  award  of  the  auditors, 
for  restoration.  His  action  will  lie  if  the  attachment  was  un- 
authorized by  law,  or  if  the  grounds  laid  did  not  bring  the  case 
under  the  statute,  or  if  the  cause  of  action  was  false — that  is, 
if  the  alleged  debt  was  not  due  and  owing;  and  he  may  recover 
as  damages  the  amount  received  by  the  attachment-plaintiffs 
and  such  costs  and  expenses  as  have  been  paid  out  of  the  pro- 
ceeds of  his  property.  1 

The  report  of  the  auditor  is  not  in  itself  conclusive;  it 
requii-es  conHnnation  by  judgment;  and  the  court,  because  of 
mistakes  of  law,  may  refuse  to  enter  judgment,  and  may  refer 
the  matter  back  to  him. 2  There  is  not  confirmation  in  the 
sense  that  makes  the  award  final,  as  in  ordinary  confirmation 
of  default. 

The  practice  in  Virginia  and  Maryland  has  been  similar  to 
that  of  the  States  above  mentioned  with  respect  to  the  judgment 
nisi  though  now  modified  in  some  respects. 

Judgment  nisi  in  foreign  attr.chment,  under  which  the  attach- 


'  Schenck  v.  Griffin,  33  N.  J.  L.  »  Berry  v.  Callet,  6  N.  J.  L.  179. 

462. 


40-4  JUDGMENT    SUSTAINING    ATTACHMENT. 

ing  creditor  sells  the  o-es  without  final  decree  against  it,  \ras 
guarded  under  a  former  statute,  by  the  requirement  of  a  bond 
from  the  plaintiff  to  restore  the  proceeds  upon  the  disproval  of 
the  debt  within  the  usual  delay.  The  bond  might  be  to  "per- 
form future  orders,"  etc.,i  but,  in  Maryland,  under  this  prac- 
tice, it  was  held  that  security  to  the  non-resident  defendant 
was  not  necessary  when  a  year  and  a  day  had  already  elapsed 
since  the  issue  of  the  attachment; 2  and,  when  that  period  had 
not  transpired,  motion  for  judgment  of  condemnation  was  there 
allowed  prior  to  filing  a  bond  to  restore  as  required  by  the  act 
of  1715.3  A  judgment  of  condemnation  on  an  attachment  and 
possession  delivered  under  a  liberate^  vests  the  legal  title. ^ 
Though  the  legal  delay  of  six  months,  required  by  the  stat- 
ute, had  not  ehipsod  after  seizure  and  before  judgment,  it  was 
held  in  Tennessee  that  title  was  conveyed  by  the  sale  of  real 
estate  pursuant  to  the  judgment  against  a  non-resident,  not- 
withstanding the  irregularity  and  reversibility  of  such  judg- 
ment. ^ 

In  Mississippi,  under  the  provision  of  the  code  of  1871,  § 
1479,  the  attaching  creditor  cannot  sell  the  attached  property 
of  the  absent  and  non-appearing  debtor,  unless  he  gives  a  bond 
to  restore  in  case  the  latter  should  appear  within  "a  year  and  a 
day,"  and  disprove  the  debt.  Any  sale  there,  without  such 
security  to  protect  the  debtor,  is  not  voidable  merely  but  abso- 
lutely void.  6 

By  the  Tennessee  code,  §  §  3527,  3528,  a  judgment  against 
an  attachment-defendant,  not  a  resident,  not  served  and  not 
appearing,  must  include  what  is  called  a  "  stay  order,"  to  pro- 
tect him;''  and  such  judgment,  without  this  essential,  is  abso- 
lutely void  if  there  has  been  no  publication  notice. ^  The  rea- 
son for  the  requirement  of  such  stay  order  is  that  the  judgment 
is  not  final  until  matured  by  prescription. 

»  Brien  15.  Pitman,  12  Leigh,  (Va.)  *  Plater  <o.  Hepburn,  3  Har.  &  M. 

379 ;  AYatts  ».  Robertson,  4  H.  &  M.  434. 
442.  ^  Porter  v.  Partee,  7   Humph.  1G8. 

2  WaUaco  «.  Forest,  2  Har.  &  M.  »  Killer  v.  Lamkin,  54  Miss.  14. 

(IMd.)  261.  '  Mulloy  v.  White.  3  Teun.  Ch.  9. 

8  Dawson  d.  Contee,  22  Md.  27.  «  Kuilr<jad  fi.  Todd,  11  Heisk.  519. 


DECKEE    KISI.  40") 

Jjy  the  Yirginia  code  of  1S73,  cli.  148,  §  24,  bond  is  rcrj'ilrcd 
of  the  attaching  creditor  before  he  can  sell,  to  secure  tlie  non- 
resident debtor  who  has  not  been  served  and  has  not  appeared,  ^ 
And  it  is  tliere  held  that  a  judgment  against  a  non-appearcr  can 
have  no  effect  as  a  personal  decree  in  another  State^  No  judg- 
ment hiching  finality  is  recognizable  beyond  the  State  jurisdic- 
tion in  which  it  was  rendered. 

No  Jinal  judcrment  by  default  and  confirmation  can  be  ren- 
dered against  the  attachment  debtor  himself,  when  he  has  made 
no  default  and  could  make  none  because'neither  cited  nor  noti- 
fied. Kor  can  any  be  against  the  pi'operty.  Property  itsc'f 
can  never  be  defanlted  as  the  fictitious  defendant;  it  is  its  owum- 
who  is  liable  to  that.  Property  may  be  condemned  by  default; 
that  is,  the  default  of  its  owner  who  has  failed  to  claim  and 
defend  it. 

No  final  judgm.ent  whatever  can  be  rendered  so  as  to  perfect 
the  creditor's  attachment  lien  when  the  debtor  has  not  been 
served  with  summons,  nor  has  appeared,  nor  has  been  invited 
by  publication  or  othernotice.  If  seizure  has  failed  to  compel 
liim  to  attend,  even  where  made  for  that  purpose,  he  cannot  be 
said  to  have  been  brought  into  court  by  his  property,  to  be  fin- 
ally dcfiiulted  for  not  pleading.  His  property  itself  is  n(^  in 
court  to  he  finally  adjudicated  so  long  as  he  lacks  his  oppor- 
tnnity-of  his  day  there  to  defend  it. 

In  proceedings  in  rem  with  general  notice,  the  default  ig 
"against  all  persons,"  (since  all  have  been  tendered  their  oppor- 
tunity to  claim,)  and,  upon  confirmation,  the  judgment  is  final; 
for  the  res  is  in  court,  whoever  may  be  the  owner.  In  proceed- 
ings in  rem  with  limited  notice,  only  the  notified  may  be 
defaulted;  and,  if  the  limitation  is  to  one,  (the  owner  of  attached 
property  for  instance,)  he  alone  can  be  defaulted.  The  usual 
formula  in  the  former  case  is:  "The  delay  allowed  bylaw 
having  expired,  and  no  claim  or  defense  having  been  filed,  it  is 
hereby  ordered  that  all  persons  having  any  right,  title  or  interest 
in  or  to  the  property  seized  herein  be  pronounced  in  contumacy 

*  Anderson  v.  Johnson,  83  Gratt,         ^Fislier  «.  Marsli,  2G  Gratt.  7C3. 
558. 

80  . 


466  JUDGMENT    SUSTAINING    ATTACHMENT. 

and  default,  and  the  libel  adjudged  and  taken  pro  confesso.''^ 
If  any  person  or  persons  have  appeared,  they  are  excepted  from 
the  order,  and  all  others  held  in  detanlt.  Such  form  wonld  be 
innpplicable  in  an  attachment  suit,  in  which  nothing  is  proceeded 
against  but  the  interest  of  the  debtor  in  the  property  attached. 
Default  is  necessarily  confined  to  hiin,  and  whatever  ownership 
or  interest  others  may  have  is  not  cut  off  or  affected  by  the 
judgment.  And  he  is  in  default  and  contumacy  only  when  he 
has  failed  to  respond  to  a  summons  or  to  publication  or 
other  notice. 

So  long  as  the  non-appearing  attachment  defendant  is  not  in 
a  condition  to  be  defaulted,  his  seized  property  is  not  in  a  con- 
dition to  have  final  judgment  of  any  sort  pronounced  against  it. 

The  judgment  is  not  final  in  Wisconsin,  Minnesota  and 
Kebrasl<a,  when  the  debtor  has  been  neither  served  nor  actually 
notified,  (though  there  has  been  publication  notice,)  until  the 
expiration  of  a  legal  delay  within  which  he  may  appear  and  set 
aside  the  judgment  upon  proper  showing,  i  In  Iowa  there  is  a 
like  provision; 3  and  in  other  States,  some  of  which  have 
been  already  particularized. 

*  Sec.  3.    Default  after  Seizure  and  Publication, 

The  debtor  njay  be  defaulted  after  seizure  and  publication. 
Final  judgment  may  be  rendered  against  the  ])roperty  attached, 
and  nominally  against  himself,  but  it  will  prove  effectual  against 
no  property  of  his  except  what  has  been  attached;  it  is  not  sus- 
ceptible of  execution  further,  as  a  personal  judgment.  Such 
judgment  by  default  against  himself  cannot  be  confirmed  so  as 
to  have  the  force  of  a  general  personal  judgment.  The  pro- 
ceeding against  the  property,  in  such  case,  is  held  to  be  not 
ancillary  but  principal.     It  is  doubtless  so  with  some  qualitica- 

'  Savage  v.  Aiken,  15   N.  W.  Re-  ^Bond^.Epley,  48  Iowa,  006,  citing 

porter,  G93.     la  Nebraska,  the  debtor  §   2877' of  the   code   providing  that 

mny  thus  appear  within  five  years;  such  delitor  niiglit  appear  within  ten 

in  Wisconsin,  within  throe,  ^Xc.     See  years  aUer  tlie  rendition  of  the  judg- 

Berry  t'.  Nelson,  4  Wis.  373;  Berry  «.  ment,   give    security    for  costs   and 

Doty,  5  Id.  C05.  defend  the  suit.    See  McClain's  Stat. 


DEFAULT   AFTER   SEIZURE    AND    PUBLICATION.  407 

tion.  "Wlietlier  the  attacliment  is  the  leading  ]iroces8  under 
such  circumstances  or  not,  it  is  that  witliout  wliich  no  nominal 
iudcrment  ao-ainst  the  defendant  can  be    rendered.     Summons 

JO  ~ 

and  appearance  being  wanting,  both  attaching  and  publishing 
are  statutory  requisites  to  the  judgment  perfecting  the  lien,  in 
most  of  the  States;  and  both  are  essential  everywhere  except 
where  only  judgment  nisi  is  sought.  The  requisition  of  pub- 
lication precludes  the  presumption  of  sufficient  notice  by  seizure 
even  when  the  property  is  taken  directly  from  the  defendant. 

Where  the  statute  does  not  expressly  require  publication  as 
a  jurisdictional  act,  if  there  has  been  neither  service  nor  appear- 
ance, it  must  still  be  insisted  that  since  default  is  nominally  a 
personal  judgment  there  is  no  reason  why  the  general  rule 
applicable  to  all  personal  suits  should  not  be  observed;  that  is, 
the  rule  that  the  defendant  must  be  in  laches  before  he  can  be 
defaulted. 

When  there  is  judgment  without  service  on  the  debtor 
and  without  his  appearance,  and  the  property  on  which  it 
operates  proves  insiitlicient  to  satisfy  the  debt  upon  which 
judgment  is  given,  the  unpaid  balance  may  be  made  the  cause 
of  action  in  another  suit;  for  it  is  as  though  no  judgment  what- 
ever had  been  rendered  respecting  it.  To  such  second  suit  the 
debtor,  may  plead  anything  that  he  could  have  set  up  had  he 
appeared  in  the  iirst,  but  he  cannot  set  up  the  attachment  judg- 
ment as  a  bar  to  the  suit  for  the  unsatisHed  balance. ^  It  is 
not  error  to  render  judgment  to  the  full  amount  of  the  debt 
alleged  in  the  petition  and  affidavit,  (though  it  is  inoperative  so 
far  as  it  exceeds  the  value  of  the  res,)  for  the  court  cannot  know 
the  precise  value  of  it  at  the  time  the  decree  is  rendered;  but 
it  has  been  held  that  if  the  judgment  exceeds  the  amount 
claimed  and  set  forth  in  the  notice,  it  is  ftitally  erroneous  in  a 
suit  bearinii;  only  on  property.'^  The  judgment,  where  valid, 
binds  the  res  only,  thougii  personal  in  form.'* 

»  Bliss  T7.  Heasty,  61  111.  3o8.  »  Parsons  ».   Paire,   26   Ark.  124; 

2  Forsyth  fC  a^.   c.  Warren,  G2   111.  Banta  ».  Wood,  33   Iowa,    469;  Doo- 

68;  Hobson  v.  Emporium  Co.   42  Id.  little  v.  Sliellon,  1  Greene,  (la.)  272; 

306;  Hichins  v.    Lyon,  35   Id.    150;  Bates    v.    Delavan,     5    Paige,    299; 

Rowley  v.  Berrian,  12  Id.  203.  White  v.  Floyd,  Spears  Eq.(S.  C.)  351. 


4G8  JUDGMENT    SUSTAINING    ATTACHMENT. 

Sec.  4.    Trial  upon  Issue  Joined. 

"When  tlie  answer  is  a  general  denial  of  all  the  allegations  of 
the  plaintiff,  the  issues  to  be  tried  are  whether  the  defendant  is 
indebted  as  alleged,  and  whether  there  was  ground  for  the 
attachment.  For  instance,  if  the  charge  is  that  the  debtor  was 
about  to  dispose  of  his  property  fraud nlently;  and  he  denies 
this  under  oath,  the  attachment  must  be  dissolved  unless  the 
plaintiff  show  that  he  had  reason  to  believe  that  such  ground 
existed.  1  And,  in  order  to  maintain  his  attachment  on  final 
trial,  the  plaintiff  must  not  merely  sustain  the  fact  of  his  belief, 
but  must  prove  that  the  defendant  was  about  to  make  fraudu- 
lent disposition  of  his  property.  When  the  affidavit  is  traversed, 
the  onus  is  on  the  plaintiff  to  sustain  it.^ 

The  joinder  of  issue  and  the  trial  tiiereon,  are  similar  to 
those  of  an  ordinary  case;  the  usual  rules  of  evidence  are 
applicable;  and  therefore  there  is  no  necessity  for  their  discus- 
sion here.  Proceedings  to  dissolve  attachment  have  been  here- 
inbefore considered;  and  the  defendant's  cross-action  by  way 
of  reconvention  has  been  noticed.  Judgment  for  defendant 
and  the  order  of  restoration'  have  been  briefly  treated.  It 
remains  only  to  consider  the  trial  and  judgment  when  the  result 
favors  the  plaintiff,  and  the  disposition  of  interventions  and 
claims  by  third  parties,  and  the  marshalling  of  competing  liens, 
and  tlie  final  perfecting  of  the  plaintiff's  lien,  and  execution. 

The  general  practice  is  to  try  the  attachment  upon  traverse 
before  the  trial  of  the  principal  cause;  but  if  the  order  is 
reversed,  and  there  is  judgment  rendered  for  the  plaintiff  on 
the  debt-demand,  the  ancillary  suit  may  be  heard  afterwards — 
the  officer  meanwhile  retaining  the  custody  of  the  res.^  But 
if  the  judgment  is  for  the  defendant  on  the  debt  demand  when 
that  is  tried  first,  he  is  entitled  to  have  his  attached  property 
released  without  further  inquiry,'*  When  the  debt  is  not  due, 
there  should  be  an    order  for  stay  of  execution  till  maturity 

iMeinhard  v.   Lilienthal,  17  Fla.          ^  Crnmer -b.  White,  29    Iowa,   3B(?. 

501.  So  also  if  it  is   a  non-suit:  Bules   v. 

2  Colby  v.  Gould,  16  Fla.  1G7.  Jenkins,  1  111.  25. 

3  Main  v.  Bell,  33  Wis.  544. 


TKIAL    UPON    ISSUE    JOINED.  469 

before  the  rendition  of  a  judgment  on  the  attacliment  process;^ 
or  there  should  be  no  decree  till  the  debt  becomes  due.^ 

It  lias  been  held  that  the  attachment  lien  is  preserved  and 
may  be  enforced  by  judi2;ment  ^nd  execution  though  the  per- 
sonal proceedings  against  the  defendant,  an  insolvent  debtor, 
may  have  been  stayed. *  A  defendant  may,  at  the  same  time, 
traverse  the  affidavit  and  plead  to  the  petition.  The  two  defenses 
are  perfectly  consistent:  the  first  going  to  the  writ  and  the 
second  to  the  declaration. ^  The  two  suits  may  not  be  against 
precisely  the  same  defendants;  for  the  principal,  personal  one 
may  be  against  a  firm  and  the  ancilUiry  action  may  be  against 
a  member  of  it;  and,  tliough  no  lien  could  thus  be  acquired 
upon  the  property  of  the  firm,  that  would  be  no  reason  for  dis- 
missing the  attachment. 5  A  plaintitf  who  has  sued  in  assump- 
sit may  afterwards  sue  in  attachment  on  the  same  demand. 
The  two  remedies  are  not  inconsistent.® 

There  may  be  judgment  against  the  attached  assets  of  a  part- 
nership, after  a  member  of  the  firm  has  been  discharged  from 
all  personal  liability  for  the  partnership  debt.  Such  member 
has  no  separate  interest  in  the  assets  till  the  firm's  debts  have 
been  paid.''^  Though  the  creditor  himself  may  have  discharged 
a  partner  from  all  claim,  he  may  afterwards  proceed  by  attach- 
ment in  rem  and  recover  the  whole  debt.^ 

"When  a  creditor  had  instituted  an  attachment  suit  acrainst 

o 

three  alleged  debtors,  had  obtained  personal  judgment  against 
one  of  them  and  a  judgment  against  the  attached  property 
belonging  to  all,  and  was  attempting  to  enforce  the  personal 
decree  against  the  two  whom  it  did  not  affect,  it  was  held  that 
neitlier  of  the  judgments  was  evidence  against  them  of  the 
amount  claimed  to  be  due.     The  lirst   was    held  to  he  i7i  per- 

*  Berry  v.  Anderson,  3  Miss.  649.  ^  Swarlz  v.  Lawrence,  12  Pliila.  181. 
2  Ware  v.  Todd,  1  Ala.  199.                     (Pa.  Act  of  March  17,  18G9.) 

*  Berryman  ■«.  Stern,  14  Nev.  415,  '  ]\[urray  ».  Mumford,  6  Cow.  441; 
in  exposition  of  1  Nev.  Comp.  L.  §  Cantleld  v.  Hard,  6  Ct.  180;  Rice  v. 
434.  ■                                                                 McMartiu  et  al.  30  Id.  573. 

*  Parker  «.  Brady,  5G  Ga.  373.  »  Rice  v.   j!lIcMartin  et  al.  39   Ct. 
^  Buckingham  v.  Swezy,  61    How.      573. 

Tr.  2oG. 


470  JUDGMENT    SUSTAINING    ATTACHMENT. 

sonam;  the  second,  in  rem.'^       The  latter  is  no  evidence  of 
deLt.3 

When  attachment  has  been  sued  oiit  in  a  suit  against  two 
persons,  there  may  be  judgment  sustaining  the  attachment 
against  one  onlj.^ 

See.  5.    Intervention. 

So  far  as  tlie  personal  action  is  concerned,  there  is  generally 
no  reason  for  third  persons  to  intervene  between  the  plaintiff 
and  the  defendant.  The  plaintiff,  being  an  ordinary  creditor, 
suing  to  recover  an  ordinary  debt,  cannot  deprive  a  third  person 
of  any  right  which  he  has  against  the  defendant  nor  defeat  or 
prejudice  any  lien  which  such  third  person  may  have  upon  the 
defendant's  property.  Such  third  person  must  prosecute  any 
claim  which  he  has  in  a  separate  and  independent  suit,  and  not 
come  into  a  suit  brought  by  another  to  complicate  its  proceed- 
ings. It  does  not  matter  to  him  that  the  plaintiff  in  an  attach- 
ment obtains  a  personal  judgment  against  his  debtor,  any  more 
than  if  it  were  obtained  in  any  ordinary  action  for  debt. 
But  where  an  equitable  attachment  is  sued  out  by  a  surety  to 
reach  lands  alleged  to  have  been  fraudulently  conveyed  by  his 
principal,  the  creditor  may  interfere  if  the  surety  has  not  paid 
the  debt.  4 

There  is  generally  no  reason  for  intervention  in  the  ancillary 
proceeding  in  an  attachment  suit.  As  the  attaching  creditor 
begins  his  action  when  he  has  no  lien,  with  the  purpose  of 
creating  one,  he  cannot  effect  his  purpose  to  the  prejudice  of 
liens  already  existing.  If  he  causes  the  attachment  of  property 
belonging  to  the  defendant  and  possessed  by  him,  upon  which 
no  previous  lien  rests,  it  is  manifest  that  ordinarily  no  one  is 
directly  interested  to  appear  in  tlie  suit  but  the  defendant  him- 
self. If  he  attaches  property  on  Avhich  some  other  creditor 
holds  an  existing  lien  without  possession,  he  cannot  affect  such 

iConwell  v.  Thompson,  50  111.  3-39.  Eq.  851. 

2  Manchester  v.  McKee,  9  111.  511 ;  «  Allen  v.  Clayton,  3  McCra-y,  517. 

Jackson's  Appeal,  2  Grant,  (Pa.)  Cas.  *  Peevey  v.  Cabaniss,  7U  Ala.  253; 

407  ;  White  v.  Floyd,    Spears,  (S.  C.)  Ala.  Code,  §  3804. 


INTEKVENTION.  471 

lien -holder's  rights,  since  the  attachment  is  subject  to  that  lien. 
lie  can  proceed  only  against  the  debtor's  interest  in  the  thing 
attached,  and  tliat  is  the  property  ininiis  the  interest  which  tlie 
previons  lien-holder  has  in  it.  It  therefore  does  not  concern 
the  lien-holder  whether  tlie  attacliing  creditor  obtains  a  jnnior 
lien  or  not.  He  has  no  interest  to  interplead,  and  hence  no 
right  to  come  into  the  case  and  oppose  the  litigation  going  on 
between  the  plaintiff  and  the  defendant,  or  urge  a  judgment  in 
his  own  favor  with  recognition  of  the  rank  of  his  lien  as  para- 
mount to  that  of  tlie  attaching  creditor.  His  time  to  appear, 
if  at  all,  is  after  judgment  to  claim  the  proceeds.  The 
hold  which  he  had  upon  the  property  is  not  broken  by  the 
judgment  and  the  sale,  when  the  sale  is  made  subject  to  his 
lien;  and,  when  it  is  not,  he  follows  the  proceeds,  and  is  awarded 
his  proper  rank  as  a  creditor  in  the  distribution. 

The  attaching  creditor,  who  has  perfected  his  hypothetical 
lien  of  attachment  by  a  judgment  thereon,  is  in  no  better  posi- 
tion in  respect  to  a  prior  lien-holder  tiian  that  of  a  junior 
mortgagee  who  has  had  his  mortgage  recognized  by  decree,  in 
relation  to  a  senior  mortgagee.  The  junior  may  issue  execution 
and  sell  the  property  bnf  the  senior  must  be  fully  satisfied  out 
of  the  proceeds  before  any  can  be  applied  to  the  paj'ment  of 
the  junior.  Indeed,  the  execution  and  sale  are  primarily  for 
the  benefit  of  the  older  lien-holders,  and  the  plaintiff  in  execu- 
tion is,  in  some  sense,  the  agent  of  such  beneficiaries.  It  is  so 
when  the  latter  cannot  issue  execution  in  their  own  names  but 
must  follow  the  action  of  the  judgment  creditor  and  look  to  the 
proceeds  for  their  payment.'- 

'  This    is  well  illustrated   by  de-  v.  New  Orleans  Navigation  Co.  1  Id. 

cisions  iu   Louisiana,    where  mort-  224;    Fulton  v.   Fulton,    7    Id.   73; 

gage  is  a   lien    without   possession.  City  Bank   of  New  Orleans  v.  Mc- 

"  One  holding  a  prior  mortgage  can-  Intyre,    8    Id.    407;    Bloodworth  v. 

not  prevent   the   sale  of  the   mort-  Hunter,  9  Id.  256;  Joice  v.   Poydras 

gaged  property  at  the   suit  of  a  sub-  De  La  Lande,  G  La.  283 ;    Herbert's 

sequent  mortgagee.     He  must  exer-  Heirs  v.  Babin,  G  Martin,  (N.  S.)  614; 

cise  his    right  on    the    proceeds:"  Casson  ».  Louis  St.  Bank,  7  Id.  281; 

Conrad  ?;.  Prieur,  5  Eob,   55;  Tyler  Rowley  v.  Kemp,  2    La.  Ann.   360. 

V.  His  Creditors,  9  Id.  373;  Florence  "The  proceeds  stood  in  the  place  of 


472  JUDGilEJN'T    SUSTAINING    ATTACIUIENT. 

If  lien-bearliig  property  is  attaclied  and  prosecuted  to  judg- 
ment, the  attaching  creditor  cannot  sell  a  part  of  it,  sufficient 
to  satisfy  his  own  chiim,  and  leave  the  prior  lien  hokler  bereft 
of  a  part  of  his  security.  Were  the  rule  otherwise,  there  would 
indeed  be  good  reason  for  intervention.  But,  since  the  plain- 
tiff is,  in  a  sense,  the  agent  of  the  senior  lien -holder,  when  he 
issues  execution,  he  is  bound  to  sell  the  whole  of  the  lien-bear- 
ing property  attached,  so  as  to  clear  away  the  prior  liens  by 
payment  out  of  the  proceeds,  and  thus  enable  himself  to  satisfy 
his  own  claim  out  of  any  residue.  Under  such  circumstances, 
lie  is  in  duty  bound  to  exhaust  the  property  in  order  to  pay 
mortirases  or  other  liens  outrankiniij  his  own:  and  that  duty  is 
correlative  with  the  right  of  the  prior  lien-holders  to  have  it 
exhausted.!  The  payment  of  the  supei-ior  claims  is  the  iirst 
duty  of  the  plaintiff  in  execution.  It  is  a  condition  pre- 
cedent to  his  privilege  of  making  his  own  money  out  of  the 
property;  it  is  the  sine  qtia  non  of  his  judgment  right.  He  is 
bound  to  sell  all  of  the  mortgaged  property  which  he  has  attached; 
he  cannot  sell  a  part  to  pay  the  mortgage  in  part  when  the 
mortiTfiffe  covers  the  whole  and  the  exhaustion  of  the  whole 
is  necessary  to  satisfy  the  lien.  2 

Every  portion  of  property  mortgaged  is  liable  for  the  debt; 
the  mortgage  is  tota  in  toto^  et  tola  in  qaallhet  jxiTte.'^  Hence, 
if  \\\Q  jus  ad  rein  of  a  second  mortgagee,  (or  of  an  attachment 
judgment-creditor,)  should  amount  to  only  one-tenth  of  the  value 
of  the  property  attached,  he  must  sell  the  whole,  unless  a  part  is 
sufficient  to  satisfy  the  anterior  mortgage  as  well  as  his  own.     And 


the  real  estate  and   the  same  prefer-  Parsons  v.  Wells,  17   Mass  425;  U. 

ence  wasretaine}:l  on  them:"     Crum  States  «.  Hawkins,  4  Jtartin,  N.  S. 

«.  Laidlaw,  10  Martin,  468;  Chipella  (La.)  317. 

V.  Launsse,  Id.  448.     It  was  held  that  ^  So  repeatedly  held  in   Louisiana 

"the  creditor  whose  pledge  is  seized  with    reference  to    sales   by  junior 

and  offered  for  sale  at  the   suit   of  mortgages   wlien   riglits   of    seni(u-9 

anotlier,  would  not  have  the  right  to  were  involved  :  Pepper  v.  Dunlap,  IG 

oppose  that  sale  and  to  preserve  his  La.   163,   169;    Florence   v.   Orleans 

pledge  in  kind.     His  right  is  tiiat  of  Nav.  Co.  1  Kob.  224;  Moore  ».  Allain, 

being  paid   out  of   the    proceeds."  10  La.  496 ;  Elwyn  v.  Jackson,  14  La. 

Alexander  v.  Jacob,   5  Martin,  634.  411;  Adams  v.  Sears,  3  La.  Ann.  144. 

1  Theluseu  v.  Smith,  2  Wheat.  426;  «  Bagley  v.  Tate,  10  Rob.   (La.)  45. 


INTERVEKTION.  473 

wlicn  tlie  proceeds  of  the  wliolo  liave  been  brought  into  court, 
it  is  time  enough  lor  the  creditor  lirst  in  rank  to  malvC  his 
appearance  and  chiim  to  be  fir^t  paid  out  of  tlie  proceeds. 

TJie  senior  lien-holder  not  in  possession  has  no  cause  to  inter- 
vene by  reason  of  the  attaching  creditoi"'s  seizure  of  the  prop- 
erty and  its  coining  into  the  possession  of  the  court  under  ttie 
attachment.  Tlie  possession  is  not  adverse  to  him.  The 
attaching  is  effected  with  reference  to  his  lien;  or,  rather,  only 
the  defendant's  interest  beyond  what  lie  owes  to  others  and  has 
secured  to  them  by  liens,  can  possibly  be  made  available  .by  the 
attaching  creditor.  He  cannot  set  up  such  adverse  possession 
as  would  defeat  such  liens,  any  more  than  a  junior  mortgagee 
could  thus  defeat  a  senior,  where  mortgage  is  a  mere  lien.i 

Everywhere,  in  every  State,  it  is  true  that  lien-holders, 
whether  mortgagees  or  others,  who  have  no  possession  to  be 
disturbed  by  the  act  of  attaching  the  property  on  which  their 
liens  rest,  are  placed  in  no  worse  position  by  the  attachment; 
are  not  prejudiced  by  the  court's  possession  of  the  attached 
property;  are  not  injured  by  the  creation  of  a  new  lien  upon 
it,  and  are  not  deprived  of  any  interest  by  the  perfection  of 
such  new  lien  by  judgment,  nor  by  a  sale  of  the  property  to 
vindicate  such  lien  after  lirst  satisfying  all  prior  liens. 

Mortgages  are  not  everywhere  mere  liens;  but  where  they 
are  so,  the  mortgagee  has  no  more  interest  to  appear  as  an 
intervenor  in  an  attachment  suit,  than  a  first  attaching  creditor 
has  to  interfere  with  the  proceedings  institnted  by  a  second 
attaclier.  In  both  cases,  the  prior  lien  is  secure;  at  least,  the 
subsequent  lien  does  not  make  it  insecure.  It  .matters  nothing, 
to  him  that  is  thus  provided  for,  how  many  new  liens  and  priv- 
ileges may  arise.  He  has  no  interest,  and  therefore  no  right  to 
come  between  the  plaintiff  and  the  defendant  during  the  pend- 
ency of  their  litigation. 

1  Bank  of  Louisiana  v.  StifTord,  12  sor  must  pay  the  debt  or  give  up  the 

How.  (U.  S.)  341.     And  the  reason  is  property:"    Moore  v.  Allain,  10  La. 

that  the  attachment  suit  is   in   char-  40(j;  "It  is  a  real  action,  whether  the 

acter  like  a  mortgage  suit,  when  the  property  mortgaged  is  in  the  hands 

lien  has  been  perfected  by  judgment.  of  the  mortgagor  or   of  a  third  per- 

"The  hypothecar}^  action  is  a  pro-  son:"  Elwyu  t.  Jackson,  14  La. 411. 
ceeding  in  rem,  and  the  third  posses- 


4:74  JUDGMENT    SUSTAINING    ATTACHMENT. 

"Whether  or  not  a  tliird  person  may  interplead  can  always  he 
tested  hy  the  question  of  liis  interest  to  do  so.  If  he  has  none, 
lie  has  no  right  to  complicate  the  case.  If  he  has  interest,  and 
it  can  only  be  asserted  in  somebody  else's  case  and  during  its 
pendency,  he  should  be  permitted  to  interj)lead  then  and  there. 
Neither  court  nor  legislature  can  deny  him  the  opportunity  of 
presenting  his  right  and  claim  somewhere  and  somehow.  He 
may  be  regulated  by  statute  or  by  tlie  established  practice,  as  to 
whether  he  may  intervene  or  resort  to  some  other  mode; 
whether  he  may  contest  the  pretensions  of  the  plaintiff  and 
defendant  in  their  case,  or  institute  an  original  one  of  his  own; 
whether  he  may  lie  still  till  disturbed  in  some  way  and  then 
resort  to  an  injunction  or  some  other  conservative  remedy.^ 

A  lien-holder  in  possession  cannot  have  his  possession  dis- 
turbed by  attachment  sued  out  by  another;  and,  if  it  is  so  dis- 
turbed, he  may  resort  to  legal  resistance,  either  in  the  attach- 
ment suit  or  otherwise,  as  the  statutes  or  the  practice  there  may 
allow.  Where  lien-bearing  property  may  be  attached,  it  is 
always  still  subject  to  the  existing  lien,  and  there  is  no  general 
reason  why  there  should  be  intervention  before  judgment,  and 
it  should  not  be  allowed  except  where  the  right  to  do  so  is 
secured  by  statute. 

'  Here  must  be  noted  the  radical  difference  between  a  proceed- 
ing in  rem  irrespective  of  persons,  where  the  notice  is  to  all  the 
world  and  all  persons  are  bound  by  the  decree,  and  a  proceed- 
ing with  respect  to  a  particular  debtor,  where  there  is  summons 
or  notice  to  him  alone,  and  he  alone  can  be  bound  by  the 
judgment. 

In  the  former  case,  lien-holders  must  intervene,  at  some  stage, 
or  lose  their  rights.  In  some  such  proceedings,  where  a  libel- 
lant  asserts  ?k.jtis  in  re,  lien-holders  are  not  allowed  to  appear; 
but  this  rule  is  almost  wholly  confined  to  prize  causes^  which 
are  prosecuted  under  the  law  of   nations;  and  even  in  such 

1  Rnmagosa  v.  Nodal,  12  La.  Ann.  Laclede  Bank  v.  Keeler,  103  111.  425. 

341 ;    Lewis  v.   Harwood,   28   Minn.  2  The  Eenrom,  2  Rob.  (Ad.)  1 ;  The 

428;  Crone  v.  Braun,  23  Minn.  239;  Tobago,  5  Id.  221;    The  Marianna,  6 

liourigues   «.  Trevino,  54  Tex.   198;  Id.  24;  The  Frances,  8  Cr.  418. 
Adcur   V.   Seeligson  &  Co.  Id.  595; 


INTERVENTION.  4  i  o 

causes  it  is  not  inflexible  except  when  the  pi-ize  is  captured  in 
battle.  AVherever  notice  to  all  persons  is  published,  interested 
persons,  (unless  tliej  be  enemies,)  are  privile^-ed  to  appear;  and 
even  an  enemy  who  sliouhl  deny  the  enemy  character,  especially 
if  he  should  take  the  oath  of  allegiance  to  the  government  wlio 
had  taken  the  prize,  might  be  allowed  to  invoke  the  protection 
of  the  court  which  he  is  no  longer  fighting  to  destroy.  He 
could  not  render  that  unforfeited  which  had  already  acquired 
the  stdtiis  of  forfeited  property  but  he  could  have  his  ojipor- 
tunity  of  showing  that  such  status  had  not  been  acquired. 
Ordinarily,  the  government's  right  to  the  thing  itself  because  it 
was  enemy  property  before  seizure  or  capture  is  paramount  to 
the  previously  existing  rights  of  all  persons  in  or  to  such  prop- 
erty; but  it  may  invite  interveners  and  give  them  standing  in 
court. 

Whether  such  invited  persons  should  come  in  before  or  after 
a  judgment  pronouncing  forfeiture,  depends  upon  the  nature  of 
their  interests.  If  they  have  no  motive  to  prevent  a  decree 
of  forfeiture  or  confiscation,  they  should  not  appear  till  after 
judgment,  when  they  may  interpose  their  rights  to  be  paid  out 
of  the  proceeds;  but  if  their  claims  would  be  lost  upon 
failure  to  ap]-)ear  before,  they  may  intervene  while  the  case 
is  pending  and  set  up  their  rights,  and  contest  the  riglits  of 
the  libellant.i 

The  invited  interest  holder  is  cut  off  forever,  if  he  does  not 
resj)ond  when  the  case  is  against  property  for  forfeiture  or  con- 

1  The  Mary  Anne,  1  Ware,  104.  decide  that  he  cannot  make  himself 
In  this  case,  the  owners  havinj^re-  a  party  to  the  cause  before  a  decree 
frained  from  claiming  and  ^uifered  upon  the  merits,  is  to  decide  that  he 
themselves  to  be  d'efaulted,  altaehing  cannot  be  admitted  to  defend  his 
creditors  intervened  jiendingthe  pro-  rights  at  all."  If  the  creditors  had 
ceedings  and  set  up  their  lien  by  vir-  perfected  their  lien  by  judgment  be- 
tue  of  attachment  prior  to  the  seizure  fore  the  seizure  by  the  libellant,  they 
by  the  libellant.  Judge  Ware  said:  might  have  entered  tlie  case  in  good 
"The  interest  of  an  attaching  credi-  time  after  decree  of  forfeiture  and 
tor  can  only  be  defended  by  the  same  before  the  distribution  of  the  pro- 
means  which  will  be  a  defense  for  ceeds,  as  Judge  Ware  says  a  sailor 
the  owner  whose  interest  is  attached;  for  wage§  or  a  material  man  for  sup 
that  is,  in  this  case,  by  showing  that  plies  avight  do — they  having  perfect 
no  ibrfeitui'e  has  been  incurred.     To  liens. 


476  JUDGMEJS'T    SUSTAIInJAG    ATTACIIAIKNT. 

fiscation,  irrespective  of  all  persons.  Even  an  innocent  owner 
is  remediless  if  lie  does  not  appear.^  His  right  is  in  re'ds  well 
as  that  claimed  by  the  government;  and  his  only  recourse,  after 
the  general  notice  of  publication,  is  by  intervention  in  the 
proceedings. 

When  proceedings  irrespective  of  persons,  with  notice  to  all, 
are  in  vindication  of  a  right  ad  re/n,  both  owners  and  lien- 
holders  are  privileged  to  appear;  and  they  must  do  so,  at  some 
stage,  or  lose  their  only  opportunity  of  securing  their  interests. 
In  brief,  without  further  distinguishing  between  the  major  and 
minor  right,  it  is  sufficient  to  say  that  third  persons  must  inter- 
vene, either  before  or  after  judgment,  or  lose  their  interests, 
when  the  proceedings  are  in  rem  irrespective  of  persons. 

On  the  other  hand,  proceedings  i?i  rem  with  respect  to  a  per- 
son, (such  as  the  anciUaiy  proceeding,  with  respect  to  a  debtor.) 
is  governed  by  the  o])|)osite  rule  as  to  third  persons.  Their 
interests  are  not  cut  oil:'  or  affected  by  judgment  against  the 
debtor;  they  are  not  notilled  to  appear  in  the  case;  and  there- 
fore they  have  no  interest  requiring  their  appearance.  Their 
lien  rights  are  protected  at  all  events.  They  need  not  come  to 
court,  unless  to  claim  payment  out  of  the  proceeds  of  the 
attached  property  after  sale,  when  the  sale  is  not  made  subject 
to  the  liens;  that  is,  with  the  prior  liens  still  resting  on  the 
property 

Sec.  6.    Junior  Attachers. 

Junior  attachers,  and  the  holders  of  junior  liens  of  any  kind, 
have  no  right  to  intervene  in  the  suit  of  the  first  attacher, 
unless  authorized  by  statute  to  appear,  or  unless  they  have  some 
interest  which  requires  assertion  in  this  way. 

In  some  States,  debtors  are  not  permitted  to  sue  out  junior 
attachments,  but  are  required  to  intervene  in  the  first  suit,  and 
file  their  claims  under  the  first  attachment,  if  they  choose  to 
create  any  lien  against  the  property  of  the  debtor  which  is 
already  attached.     They  are  placed  upon  eq^uality  with  the  first 

•  Sernmes  v.  United  States,  91  U.  S.  21. 


JUNIOR    ATTACIIEES.  477 

attaclior,  and  therefore  liave  no  motive  for  suing  out  other  writs 
against  the  same  property.  Tliey  must  appear  in  the  case, 
therefore,  or  they  will  have  no  attachment  liens  to  assert  any- 
where or  at  any  time. 

In  Indiana,  every  creditor  of  an  attachment  defendant  may 
iile  his  claim  under  the  original  attachment  while  it  is  pend- 
ing; and,  upon  estahlishing  his  right,  he  has  an  equal  lien,  and 
shares  jpro  rata  with  the  plaintitf  in  the  distribution  of  the 
proceeds.  ]S^o  distribution  can  be  had  till  all  the  claims  of  the 
intervenors  have  been  adjusted,  i  The  hypothetical  lien  attaches 
as  soon  as  the  claim  is  filed,  and  is  perfected  by  judgment,  like 
that  of  the  original  plaintiif.  And  it  has  been  held  that  such 
claim  need  not  have  been  due  when  the  original  attachment  was 
sued  out;  and  that,  if  filed  when  the  first  claim  was  pending, 
subsequent  claims  are  not  defeated  by  the  payment  of  the 
first.  3 

It  is  not  generally  allowable  for  a  junior  attacher  to  come 
into  a  senior's  suit  to  contest  the  debt  for  which  the  latter  has 
sued  and  attached.  The  subordinate  interest  which  he  has 
acquired,  by  the  subsequent  attachment  of  the  same  property, 
constitutes  no  proper  basis  for  intervention. '  Such  contest  is 
usually  deferred  till  the  time  of  the  distribution  of  the  pro- 
ceeds. 

As  a  general  rule,  one  attaching  creditor  cannot  intervene  in 
the  suit  of  another  to  defeat  it  for  irregnlai-ities  in  the  proceed- 
ings.'*    But  if  the  affidavit  fails  to  show  debt,  the  attachment 


1  Fee  ©.  ]\Ioore,  74  Ind.  319 ;  Coop-  *  Pace  n.  Lee,  49  Ala.  571 ;  Blair  «. 
er  ?).  Metzger,  74  Ind.  544;  Hender-  Puryear,  87  N.  C.  101 ;  Sims  b.  Goet- 
sou  t).  Bliss,  8  Ind.  100;  Schmidt  o.  tie,  82  N.  C.  2G8;  Copeland  v.  Ins. 
Colley,  29  Ind.  120.  Co.  17  S.  C.  116;  Metts  «.  Ins.  Co.  Id, 

2  Ziegenhagen  t).  Strong,  1  Smith,  120;  Ball  v.  ClafBin,  5  Pick.  30;]; 
(Ind.)  174;  1  Ind.  206.  Isham  «.  Ketchum,  46   Barb.  43;  In 

3  Ward  V.  Howard,  12  Ohio  St.  158;  re  Griswold,  13  Id.  412;  (See  Jaccbs 
Bank  of  FayetteYille  «.  Spurling,  7  v.  Hogan,  85  N.  Y.  243;)  Ward  « 
Jones,  (N.  C.)  L.  398.  (See  Jacobs  «.  Howard,  12  Ohio  St.  158;  Van  Ars- 
Hogan,  85  N.  Y.  243;)  Harrison  v.  dale  d.  Krum,  9  Mo.  397;  Whipple??. 
Pender,'l3usbee,  (N.  C.)  78.  Contra,  Cass,  8  Iowa,  126;  Rudolph?).  Me- 
ander statute:  Swift  V.  Crocker,  21  Donald,  6  Neb.  163;  Jloresi  ■».  Swift, 
Pick.  241;  Baird  v.  Williams,  19  Id.  15  Nev.  215;  Mendes  v.  Freiters,  16 
381;  Carter  «.  Gregory,  8  Id,  165.  Nev.  3SS;  B;iuk  of  Augusta  o.  Jau- 


478  JUDGMENT    SUSTAINING    ATTACHMENT. 

inay  be  vacated  on  application  of  one  who  has  acqnired  an  in- 
terest subsequently  to  the  issue  of  the  attachmen-t. ^  2\nd  it 
lias  been  held  that  the  judgment  in  lavor  of  a  senior  atlacher, 
if  void  for  want  of  service,  may  be  vacated  on  the  motion  of 
a  junior  attacher.^ 

To  maintain  an  attachment  lien  and  the  right  of  setting 
aside  a  prior  seizure,  the  appearer  must  establish  the  validity  of 
his  own  levy.  The  affidavit  of  his  attorney  is  not  sufficient  to 
establish  that  fact.  It  is  not  the  best  evidence  of  which  the 
fact,  if  true,  is  susceptible,  for  the  record  is  better.  And  if  the 
necessary  allegation  is  not  proved,  the  second  attacher  fails 
to  show  his  right  to  appear  for  the  purpose  of  vacating  the 
first.  3 

A  creditor  who  has  attached  property  susceptible  of  manual 
delivery  may  contest  the  validity  of  a  prior  assignment  and  of 
an  execution  issued  upon  a  judgment  confessed  by  the  debtor.'* 
He  may  enjoin  the  sale  under  such  execution.  ^ 

It  is  competent  for  a  junior  attacher  to  contest  the  lien  of  the 
senior,  on  the  ground  of  fraud  in  obtaining  it.  He  may  allege 
and  prove  collusion  between  the  senior  and  the  defendant.  He 
may  stipulate  for  costs  and  then  be  allowed  to  defend  against 
the  first  attachment,  in  the  name  yet  without  the  consent  of  the 
defendant,  in  order  to  secure  his  own  interests,  and  relieve  the 
property  from  the  prior  attachment  to  make  way  for  his  own. 
And  what  he  may  thus  do,  when  goods  have  been  thus  collu- 

don,  9   La.   Ann.   8;    Fridenbnrg  v.  ing  was  a  judgment  creditor  and  his 
Pierson,    18    Cal.   153;    ISIcBride  v.  lien  was  secured  by  a  levy   upon  ex- 
Floyd,  2  Bailey,  (S.  C.)  209;    Kincaid  ecution.     A  manifest  distinction  lias 
«.   Neall,    3    McCord,   (S.    C.)    201;  always  been  made  between  tlie  posi- 
Camberford  •».  Hall,  Id.  345;  AValker  tion  of  judgment  and  general   credi- 
V.  Roberts,  4  Rich.  (S.  C.)  561.  tors."     Is   not  the   holder   of  an   in- 
'  Smith  V.  Davis,  29  Hun.  301.  cipient  attachment  lien  to  be  esteem- 
2  Ferguson  v.  Gilbert,  17  S.  C.  26.  ed  something  more   than   a   general 
But  see  Derby  v.  Shannon,  19  S.  C.  creditor?     Perhaps  not  when  he  ap- 
526.  pears  to  contest  a  perfected  lien,  but 
'  Tim  V.   Smith,   93   N.   Y.  87,  in  otherwise  when  he  seel<s  to  vacate  a 
which  Ruppert  v.  Haug,  87  N.  Y.  141,  prior  attachment  not  yet  matured  by 
and  Steuben  Co.    Bank  v.   Alberger,  judgment. 

78  Id.  252,  were  distinguislied ;  the  *  Bates  p.   Plonsky,    28    Hun.   112; 

court  remarking  with  regard  to  each  64  How.  Pr.  232. 

of  those  cases:  "The  party  iuterveu-  ^  Leon  v.  Scram,  58  Tex.  524. 


JUNIOR    ATTACIIERS,  479 

sivelj  attached  in  the  liands  of  the  defendant,  he  may  also  do 
when  they  have  been  reached  by  garnishment,  or  when  a  debt 
due  by  the  garnishee  lias  been  thus  reached.  He  may,  to  defeat 
the  senior's  attachment  or  garnishment,  aver  and  prove  that  the 
debt  claimed  has  been  paid,  or  .that  it  never  existed.  He  may 
even  have  a  judgment  rendered  in  favor  of  the  senior  annulled 
on  the  ground  of  fraud  and  collusion  with  the  defendant. 
The  case  is  stronger,  if  the  junior  attacher  alreadv  has 
judgment  on  his  claim  against  the  same  defendant.  He  may 
then  contest  the  prior  judgment-lien  of  the  senior  on  any 
ground  showing  lliat  the  latter  had  no  cause  of  action.  Both 
plaintiffs  being  in  court,  he  may  proceed  to  set  aside  such  judg- 
ment by  rule,  or  otherwise,  to  direct  tlie  distribution  of  the 
funds  arising  from  the  sale  of  the  property  seized,  or  the  debt 
paid  into  court  b}'  the  garnishee. 

The  junior  attaching  judgment  creditor,  not  being  either  a 
party  or  a  privy  to  the  suit  of  the  senior  attaching  judgment 
creditor,  has  the  same  right  to  attack  it  on  any  ground 
when  it  stands  in  the  way  of  his  interests  and  rights  that  any 
stranger  to  the  liti2;ntion  would  have  under  similar  circumstances. 
Judgments  do  not  preclude  strangers  from  attacking  them. 
Whoever  is  without  right  and  power  to  appear  and  defend, 
to  contest  and  appeal,  cannot  be  concluded  by  a  judgment 
against  another  which  affects  himself,  in  an  attachment  suit, 
in  which  fraud  in  obtaining  preferences  is  more  common  than 
in  ordinary  causes. 

Under  circumstances  allowing  an  intervenor  to  claim  attached 
property,  lie  may  do  so  without  reference  to  any  controversy 
between  the  parties;  the  judgment  cannot  affect  the  right  of 
property  as  between  himself  and  the  defendant.  ^ 

The  court  may  vacate  the  senior  attacher's  judgment  on  the 
ground  of  fraud  and  thus  wholly  destroy  his  lien.  It  is  not  essen- 
tial that  tlie  defendant  be  a  party  to  the  fraud,  "Where  the  junior 
attacher  has  a  judgment  against  the  defendant,  and  then  attacks 
the  prior  judgment  on  the  ground  of  fraud,  a  court  of  law  may 
determine  the  question;  and,  even  if  he  has  yet  no  judgment,  a 

»  Brown  v.  ^McGeliee,  38  Ark.  329. 


480  JUDGMENT    SUSTAINING    ATTACiniENT. 

court  of  equity  M'onld  certainly  be  competent  to  inquire 
into  tlie  senior's  judgment  when  attacked  on  the  ground  of 
fraud.  ^ 

There  are  many  circumstances  under  Avhich  the  rights  and 
interests  of  third  persons  are  better  protected  and  enforced  by 
interpleas  in  an  attachment  suit.  If  one  has  a  legal  interest  in 
defeating  the  claim  of  the  attaching  creditor,  he  may  properly 
intervene:  for  instance,  he  may  plead  prescription  or  any  other 
defense,  if  the  defendant  is  insolvent,  ^  Intervention  was  held 
the  proper  remedy  for  judgment  creditors  of  the  attachment 
defendant  who  sought  relief  against  an  attachment  which  they 
averred  to  be  a  fraud  upon  their  rights.  ^  And,  on  the  ground 
that  an  attachment  was  improperly  and  fraudulently  levied, 
junior  attachers  have  been  received  as  intervenors  in  the  pro- 
ceeding under  the  first  attachment  to  have  it  quashed;  they 
alleging  that  they  have  an  interest  thus  to  appear  because  tlie 
first  attachment,  if  prosecuted  to  judgment  and  execution, 
would  leave  no  property  of  the  defendant  out  of  which  the 
juniors  could  make  their  money. * 

Sec.  7.    Claimants. 

There  are  many  interests  of  such  a  character  that  they  require 
to  be  presented  in  an  attachment  suit  by  way  of  intervention. 
If  a  dispossessed  owner  has  no  other  means  of  regaining  his 
property  seized  as  that  of  the  defendant;  or  if  a  lien-holder's 
right  is  such  that  it  depends  upon  possession,  and  he  is  divested 
of  it  by  an  attachment  sued  out  against  another,  and  he  has  no 
remedy  but  by  intervention,  (though  other  remedies  usually 
exist,  in  both  the  supposed  cases,)  he  ought  to  be  allowed  to 
intervene.  It  has  been  held  that  the  holder  of  a  deed  of  trust 
to  property,  given  by  the  defendant  after  the  property  had  been 
attached,  may  intervene  to  claim  the  property  and  controvert 
the  attachment  proceedings  against  it.^ 

» Smith  V.   Gottinger,   3  Geo.  140;  '  Davis  v.  Eppinger,  18  Cal.  378. 

Hale  V.  Chandler,  3  Mich.  531 ;  Reed  *  Speyer  v.  Ihmels,  31  Cal.  280. 

V.  Ennis,  4  Abb.  Prac.  393.  ^  Bamberger  v.   Halberg,   78   Ky. 

2  New  Orleans,    &c.   v.  Beard,  16  870. 
La.  Aun.  315. 


CLAniAMTS.  4S1 

It  lins  \)o^n  lield  that  one  wlio  intervenes  to  claim  tlio  proii- 
erty  attached  and  contest  tlie  defendant's  title,  may  prove  state- 
ments made  by  the  latter  tending  to  show  that  he  did  not  own 
it.i  But  the  contest  is  with  the  phiintiiF;  the  issue  is  the  fact 
of  ownership  and  the  burden  of  j)r(^uf  is  upon  the  intervenor, 
or,  rather,  the  third  o])ponent,  which  the  intervenor  properly 
is.2  It  is  the  plaintilf  whom  the  intervenor  raahing  thii-d 
opposition  must  cite;  not  necessarily  the  attachment  defend- 
ant. ^  It  is  for  the  intervenor  to  see  that  the  intervention  is 
put  at  issue  and  brought  to  trial.* 

It  is  the  claimant's  title  which  is  put  at  issue  by  his  assertion 
of  it  under  an  inter-plea.  The  title  of  other  third  persons,  or  of 
the  defendant,  (especially  if  absent,)  is  not  affected  by  the  rul- 
ing upon  the  plea.  As  between  the  intervenor  and  the  attach- 
ing  creditor,  the  decision  is  conclusive  that  the  thing  in  dispute 
is  or  is  not  the  property  of  the  intervening  claimant. ^  As 
between  these  two  parties,  the  issue  is  sometimes  such  that  the 
intervenor  has  the  affirmative,  and  sometimes  the  contrary.  If 
lie  claims  the  attached  property,  he  must  plead  in  Avriting,  pre- 
sent matter  for  issue,  and  it  must  be  sufficient  to  support  a 
verdict  or  judgment;*"  and,  as  a  matter  of  course,  the  oiius  is 
on  him  to  sustain  his  affirmations;  but  it  has  been  held  that 
liis  claim  must  be  taken  as  true  if  it  is  not  answered.''  He 
must  prove  the  existence  of  a  debt  when  he  sets  up  its  assign- 
ment to  him  as  the  basis  of  his  claim. * 

lie  must  always  be  ready  for  trial,  it  is  said;  but  if  he  has 
good  reason  for  not  being  ready  with  his  evidence  upon  the 
spur  of  the  moment,  his  rights  and  interests  ought  not  to  be 

>  Wright  V.  Smith,  66  Ala.  514.  Roberts,  37  Miss.  225. 

2  Harper  v.  Commerci.al  &c.  Bank,  *  Yale  v.  Hoopes,  12  La.  Ann.  460. 

15  La.  Ann.  136.  ^  Hershy  v.   Clark&ville    Institute, 

*Gerson   v.   Jamar,    30  La.    Ann.,  15  Ark.  128. 

Part  II,  1294.     In  Mississippi,  when  **  Neal  v.  Newland,  4  Ark.  459. 

propert_v  is  attached  on   mesne   pro-  ''  Williams    v.   Vanmetre,    19    111. 

cess,  which   is  claimed  by    a  third  293. 

person,  the  trial  of  the  title   is  post-  ^  Blackly  v.  Matlock,   3  La.  Ann. 

poned  till  after  judgment  against  the  366.    See  Williams  v.  Finer,  10  Id. 

attachment  defendant.      Mandel    v.  277. 
McClure,    22    Miss.    11;     Maury   v. 

31 


482  JUDGMENT    SUSTAINING    ATTACHMENT. 

sacrificed  or  put  in  jeopardy  in  obedience  to  such  rule.  How- 
ever, it  is  a  common  remark  of  the  courts  that  an  iiitervenor 
must  be  always  ready,  and  cannot  be  permitted  to  retard  the 
principal  snit.^ 

The  burden  of  proof  is,  however,  (it  has  been  held,)  not  on 
the  intervenor,  if  he  is  a  junior  attacher  seeking  to  set  aside 
the  senior's  attachment  as  improperly  and  fraudulently  made.  ^ 

The  property  or  funds  in  the  hands  of  a  garnishee  may  be 
the  proper  object  of  contention  between  the  attaching  creditor 
and  a  claimant  of  such  property  or  funds.  But  the  claimant 
has  no  right  to  show  that  the  garnishee  has  nothing,  since  he  is 
admitted  as  a  party  in  the  case  to  establish  his  claim  to  what  is 
attached — not  to  show  that  nothing  is  attached. ^ 

In  Maryland,  under  the  act  of  1876,  one  who  has  had  prop- 
erty taken  from  him  as  that  of  the  defendant,  may  intervene, 
bond  property  in  double  the  amount  and  thus  discharge  the 
attachment.  He  may  put  both  the  title  of  the  property  and 
his  claim  for  damages  at  issue  under  tliat  act.*  Whether  he 
is  restricted  to  the  remedy  by  intervention  under  this  law,  when 
notified,  is  questioned  by  the  Supreme  Court  of  that  State.  ^ 
Ordinarily,  intervention  is  optional."  Sometimes  the  attach- 
in  o-  creditor  may  cause  a  claimant  to  be  made  a  party;  as, 
in  Maine,  when  the  trustee  or  garnishee  has  disclosed  that 
some  third  person  claims  the  fund  or  property  sought  to  be 
attached.'' 

The  interpleader,  whose  issue  involves  only  his  own  title  to 
the  property  attached,  has  no  intei-est  in  the  case  if  the  ])rop- 
erty  is  not  his.  He  therefore  cannot,  under  such  claim,  attack 
any  of  the  plaintiff's  previous  j)roceedings  in  the  case  on  the 

1  Gaines  v.  Page,  15  La.  Ann.  108.      credits    of    the    defendants    in    tlie 

2  Speyer  v.  Ihniels,  31  Cal.  281.  bands  of  tlie  trustee    at   the  time  of 
^Ciaik  1).  Gardner  et  al.  &  Trustee,      the   service   of  the   "writ   upon  him 

123    Mass.    358,     citing    Boylen  ■;;.  would  in  effect  prove  the   claimant 

Young,  6  Allen,  582;  Peck  v.  Strat-  out  of  court." 

ton,  118  Mass.  406.     The  case  turned  *  Turner  v.  Lytle,  59  Md.  199. 

somewhat  upon   Mass.  statutes,  but  ^  Id. 

the  principle  seems  good  anywhere.  *  Ilicliardson  v.  Ilall,  21  Md.  399. 

It  is  said,  in  the  decision  :  "Eviileuce  ">  Look  v.  Brackett,  74  Me.  347. 

that  there  were  uo   goods,  effects  or 


CLAIMANTS.  483 

ground  of  their  irregularity.*  Such  issue  as  to  title  canuot 
be  tried  ou  rule  in  vacation.  ^ 

While  it  is  no  concern  of  the  intervener  whether  the  attach- 
ment was  regularly  made  or  not,  in  case  the  property  is  not  his 
but  tlie  defendant's,  it  is  his  concern  if  he  is  really  tlie  owner; 
and  he  may  move  to  vacate  it  on  grounds  proper  for  him,  as 
the  claimant  of  ownership,  to  assert.*  Obviously,  he  must 
have  interest  in  the  dissohition  before  he  can  move  to  dissolve.^ 
Whetlier  his  interest  is  confined  to  personal  property,^  or  may 
be  presented  when  his  realty  is  involved,^  it  must  be  such  that 
he  would  be  injuriously  affected  by  the  perfection  of  the  attach- 
ment in  order  to  entitle  him  to  make  the  motion  for  dissolution 
when  he  is  a  mere  intervener  in  the  cause. 

After  having  been  adjudged  the  owner  of  tlie  attached  prop- 
erty, tlie  intervener  may  recover  damages  by  suit  against  the 
attacher  for  the  wrongful  levy.' 

One  who  is  the  owner  of  property  attached  as  that  of  another, 
may  either  intervene  in  the  suit  to  cUiim  his  property,  or  he 
may  sue  the  sheriff  or  the  purchaser  without  making  himself 
a  party  to  the  attachment  suit.^  When  he  has  been  adjudged 
the  owner,  he  has  his  action  against  tlie  shei-iff  for  wrongful 
seizure. 3  The  judgment  upon  the  intervention  should  decide 
npon  his  right  to  the  property  claimed. i® 

One  to  whom  goods  have  been  constructively  delivered,  (as  by 
bill  of  lading,)  may  successfully  intervene  in  the  suit  of  a  sub- 
sequent attacher.  11  He  has  an  interest  to  maintain,  without 
which  he  could  not  appear  by  interplea  to  recover  the  property 
or  damages.  1  2    The  garnishor  of  a  debt  cannot  intervene  and 

1  Pace  V.  Lee,  49  Ala.   571 ;  Moresi  ^  Frank  v.  Cliaffe,  34  La.  Ann.  1203. 

r.  Swift,  15  Nev.  215;  Davis  c.  Fogg,  ^  j^Q^ij-jgu^g    ^    Treviuo,   54    Tox. 

58  N.  H.  159.  198. 

3  New  Orleans  v.    Morris,   29  La.  «  Clark  v.  Brott,  71  Mo.  473. 

Ann.  241.  lo  Hewsou  v.  Tootle,  72  Mo.  632. 

3  Hines  v.  Kimball,  47  Ga.  587.  "  Adour  v.  Seeligson  &  Co.  54  Tex. 

*  Long  V.  Murphy,  27  Kan.  375.  593. 

6  Gordan  v.  McCurdy,  26  Mo.  304.  12  Mayberrj  v.    Steagall,  51   Tex. 

^  Bennett   v.   Wolverton,  24   Kan.  351. 
284. 


4S4  JUDGMENT    SUSTAINING    ATTACHMENT. 

claim  it  as  due  to  hiinself.i  Jt  is  held  in  Delaware  tiiat  no 
one  can  intervene  without  statute  authorization.* 

When  interplea  has  been  iiled  and  property  claimed,  if  the 
judgment  is  averse  to  the  plea,  the  intervenor  cannot  afterwards 
maintain  replevin  against  the  officer.  ^  If  one  intervenes  and 
claims  as  due  to  himself  a  credit  attached  in  the  hands  of  a 
garnishee,  he  cannot  recover  if  the  attaching  creditor  abandons 
the  garnishment.* 

Only  the  assignee  can  be  heard  to  prove  that  the  attachment 
was  dissolved  by  the  bankruptcy  of  the  debtor. ^  He  is  not 
precluded,  by  a  judgment  sustaining  attachment  on  the  ground 
that  the  fund  in  the  garnishee's  hands  was  fraudulently  assigned, 
from  intervening  and  asserting  his  rights  as  assignee. « 

In  Alabama,  third  persons,  shown  by  the  answer  to  be  inter- 
ested, may  be  brought  into  court  and  made  parties;''  but  it  is 
held  in  Missouri  that  courts  have  no  right  to  order  non-resi- 
dents to  come  into  an  attachment  suit  and  litigate  their  rights 
to  an  attached  fund.^  In  Massachusetts  it  was  held  that  the 
conflicting  rights  of  two,  distinct,  adverse  claimants  of  funds 
in  the  hands  of  a  trustee  cannot  be  settled  by  proceedings 
under  the  trustee  process.^  The  practice  in  New  York  seems 
to  be  diiFerent.i  o 

It  has  been  held  that  the  surety  on  the  dissolution  bond  of  the 
defendant  may  become  claimant;^  i  and  that  a  person,  interested 
before  he  was  summoned  by  the  plaintiff  as  garnishee,  is 
not  precluded  from  intervening  to  protect  his  interest,  by  reason 
of  the  summons.^  ^ 

An  intervenor  on  a  trust  deed,   paid    before  the  attachment 


'  Abernathy  ©.  Whitehead,  69  Mo.  Boyd  «.    Cobbs,  Id.  82;   Kowland  c. 

28.  Plummer,  Id.  183. 

2  Pennsylvania   Steel    Co.  v.  New  *  Sheedy  v.  Second  Nat.   Bank,  62 

Jersey  Southern  R.  R.   Co.   4   Hous-  Mo.  17. 

ton,  572.  9  Peck  D.  Stratton,  118   Mass.  406. 

3Bray«.  Saaman,  13  Neb.  519.  lo  i^^glly  «.  Whjting,   51    How.  Pr. 

♦  Peck  V.  Stratton,  118  Mass.  406.  201. 

5  Golsan    v.   Powell,  32  La.   Ann.  •    "  Redwitz  v.   Waggaman,   33    La. 

521.  Ann.  26. 

•^Menkel  v.  Gumbel,  57  Miss.  756.  '"  Crone  v.  Braun,  23  Minn.  239. 

'Molton   V.   Escott,   50     Ala.    77; 


PRIORITY    OF    SEIZURE.  485 

judgment,  can  have  costs  wliicli  accrned  before  payment;  and 
the  payment  may  he  proved  under  the  issue,  ^ 

It  lias  been  lield  tliat  an  intervener,  who  is  a  citizen  of  a 
State  other  than  that  vi'liere  the  suit  is  pendin"^  in  which  lie 
intervenes,  may  have  the  cause  removed  to  the  federal  court.  ^ 

Jurisdiction  of  the  question  between  the  interpleader  and 
the  plaintiff  depends  upon  the  validity  of  the  attachment.  If, 
for  instance,  there  is  no  legal  service  of  the  writ,  there  is  no 
suit  between  the  parties  to  the  interpleader  for  want  of  juris- 
diction.* The  record  is  before  the  court  and  need  not  be  offered 
in  evidence.* 

Sec.  8.    Priority  of  Seizure. 

Judgments,  so  far  as  attachment  liens  are  concerned,  retroact 
to  the  date  of  the  respective  levies  so  as  to  determine  the  rela- 
tive rank  of  competitors,  as  a  general  rule.  The  Georgia  code, 
§  3331,  has  been  construed  to  tix  priority  of  liens  by  the  dates 
of  judgments,  M'lien  an  attachment  lien  comes  in  conflict  with 
an  oi'dinary  judgment,  though  the  levy  of  the  attachment  be 
older  than  such  ordinary  judgment,  and  even  older  than  the 
commencement  of  the  suit  resulting  in  such  judgment.  A 
junior  creditor  cut  up  his  claim  into  demands  of  one  hundred 
dollars  eacli,  sued  before  a  justice  of  the  peace  by  ordinary  per- 
sonal action,  thus  obtained  judgments  ante-dating  a  previously 
instituted  attachment  suit  in  which  the  levy  was  anterior  to  the 
suits  in  the  justice's  court,  and  he  was  thus  allowed  to  forestall 
the  attachment  lien.^      But  this  is  anomalous. 

In  South  Carolina  and  Pennsylvania,  attachments  levied  on 
the  same  day  rank  equally.*  They  are  deemed  simultaneous; 
and  everywhere  simultaneous  attachments  rank  equally.  But 
the  rule  is  different  in  most  of  the  other  States.  Generally, 
the  seizure  legally  made  prior  to  subsequent  ones  on   the  same 


'  Helm  V.  Gya.y,  59  Miss.  54.  ^  Andrews    v.    Kaufmans,    60  Ga. 

2  Oilman  v.  Wheelock,  10   Bissell,  CG!) — Jackson  dissenting,  Id.  673. 

4;:0.  ''  Sleftens  v.  Wanbosker,   17  S.  C. 

s  Gibson  v.  Wilson,  5  Ark.  422.  475;  Yelverton  v.  Burton,  26  Pa.  St. 

*  French  c  Bale.  60  Miss.  516.  351. 


486  JUDGMENT    SUSTAINING    ATTACHMENT. 

day,  thongli  aTite-dating  them  but  an  lionr,  or  even  a  few  min- 
utes, is  entitled  to  the  higher  rank.i 

Simultaneous  attaching  will  be  deemed  to  have  tahen  place 
when  several  writs  have  been  returned  as  executed  on  the  same 
day,  if  there  is  nothing  to  indicate  the  exact  time  of  the  day 
and  all  the  creditors  acquiesce  in  the  return.  The  officer  mnv 
be  recjuired  to  specify  the  precise  order  of  the  levies  and  to 
state  at  what  o'clock  each  was  made,  though  his  return  cannot 
be  contradicted;  it  is  good  as  far  as  it  goes;  it  may  be  com- 
pleted but  cannot  be  disregarded.  It  would  be  no  contradiction 
of  the  return,  should  the  exact  time  of  the  seizure  be  proved 
by  parol,  provided  the  evidence  do  not  establish  a  different  day 
from  that  nominated  in  the  official  report;  and. parol  evidence 
has  been  allowed  when  the  officer  could  not  or  did  not  make 
his  return  precise  as  to  the  hour  and  minute  so  as  to  solve  the 
question  of  priority  among  competing  attachers. 

If  the  hour  is  specified  in  the  return  of  one  writ,  but  not  in 
that  of  another  returned  as  served  on  the  same  day,  must  the 
first  necessarily  have  priority?  It  lias  been  thought  such  is  the 
case,  and  that  the  latter  return  could  not  be  supplemented  so  as 
to  render  it  more  definite  ;2  but  if  the  first  be  returned  as  served 
at  noon,  there  seems  to  be  no  good  reason  for  the  presumption 
that  the  second  was  served  later  on  the  same  day.  The  first 
has  no  vested  right  of  priority  if  the  second  was,  in  fact,  served 
at  the  same  time  or  at  a  preceding  hour.  Under  such  circum- 
stances, the  fact  becomes  important;  and  the  sherifip  not  only 
may  but  should  show  it  by  an  additional  and  more  pointed 
return,  if  in  his  power  to  do  so.  It  would  not  be  contradictory 
of  his  fii'st  return.  If  not  in  his  power,  there  seems  no  good 
reason  why  the  fact  should  not  be  brought  out  by  the  testimony 
of  any  competent  witness  who  can  establish  it.  It  must  be 
borne  in  mind  that  the  return  does  not  create  the  lien  or  fix  the 
order  of  privilege;  it  is  the  act  of  attaching  which  does  that; — 

1  Lick  IB.   Madden,   36    Cal.    208;  Huntington,  17  N.  H.  438;  Taylors. 

Tufts  «.  Carradine,  3  La.  Ann.   4:30;  Einery,  16   Id.  359;  Neale  v.   Ultz, 

Shove  V.  Dow,  13   Mass.  529;  Brain-  75  Va.  480. 

ard  V.  Buslinell,  11  Ct.  16;  Bissell  v.  »  Fairfield  t.  Payne,  23  Me.  493. 

Noouey,  33   Id.    411;    Tliurstou    v. 


PKiorjxr  OF  SEIZURE.  487 

the  return  is  but  tlie  evidence  of  the  act  and  of  the  time  of  its 
performance.  1 

If  several  writs  are  executed  at  so  nearly  the  same  time  that 
priority  cannot  be  distinctly  accorded  to  any  one,  they  should 
all  rank  alike.  So,  in  all  cases. of  doubt,  when  neither  emenda- 
tion of  the  returns  nor  parol  evidence  is  permissible,  when 
neither  can  settle  the  question  even  if  admitted,  or  when  all 
parties  acquiesce  in  the  returns  or  are  obliged  so  to  do,  the 
attachments  must  be  treated  as  simultaneous.  There  are  cases 
in  which  a  wronged  attacher  may  have  his  action  against  the 
oflScer  because  of  a  return  giving  him  rank  below  that  to  which 
he  is  entitled,  though  he  may  be  unable  to  expose  the  wrong  in 
contest  for  priority  and  to  establish  the  fact  that  his  writ  was 
really  executed  prior  to  that  of  his  competitors. 

An  attachment  by  the  creditor  of  an  individual  partner  will 
not  affect  the  lieu  of  a  senior  attacher  who  is  the  creditor  of  the 
partnership.  2 

When  property  has  been  attached,  a  second  attachment  may 
be  laid  on  it;  and,  should  the  tirst  be  dismissed,  the  second  may 
hold  against  the  property  and  the  debtor. ^  It  has  been  held 
that  if  the  first  be  prosecuted  to  judgment  upon  an  answer 
made  by  a  garnishee  after  the  return  of  the  writ,  the  later  attach- 
ing creditors  are  not  forestalled  by  such  judgment.*  If,  how- 
ever, the  return  shows  that  all  the  property  and  credits  of  the 
defendant,  in  the  hands  of  the  garnishee,  have  been  attached, 
the  creditor  is  not  to  be  forestalled  by  subsequeiit  attachers 
merely  because  the  garnishee's  sworn  acknowledgement  is 
made  after  the  return.  In  the  practice  almost  everywhere, 
the  garnishee  is  bound  from  the  date  of  the  service  of  the  writ 
and  interrogatories  upon  him;  and  when  he  afterwards  answers 
and  becomes  charged,  there  is  retroaction  to  the  time  of  the 
6ervice,  so  that  the  creditor's  lien  takes  date  from  that  time; 


1  In  real  estate  attachment,  the  re-  ^  Cnnuingham   v.  Gushee,  73  Me. 

turn  lias  much  to  do  with  the  fict  of  417.     See  Walts  v.  Nichols,  o9  N.  Y. 

attaching.     It  is  essential  in   jMaiue,  Sup.  Ct.  276. 

to  ihe  creation  of  the   lien,  that  the  '  Coflriu  v.  Smith,  51  Vt.  140. 

officer  make  return  to  the  register  of  *  Southern  Bank  v.  McDonald,   46 

deeds.     Bessey  v.  Vose,  73  Me.   217.  Mo.  31. 


488  JUDGMENT    SUSTAINING    ATTACHMENT. 

and  no  subsequent  attachment  or  garnisliment  can  outrank  it 
when  the  privileges  come  to  be  marshalled. 

When  a  fund  has  been  seized;  or,  indeed,  any  property  or 
credit,  the  officer  in  possession  notes  the  date  of  subsequent 
seizures  in  the  order  in  which  the  writs  come  into  his  hands,  and 
returns  the  attachments  accordingly,  since  there  are  no  overt 
acts  of  re-seizure,  1  Other  officers  cannot  attach  so  as  to  deprive 
him  of  tlie  possession  acquired  by  the  first  levy;  but  all  subse- 
quent attachments  should  be  laid  upon  the  first. 

Sec.  9.    Priority  of  Garnishment. 

When  a  debtor  is  about  to  abscond,  or  is  a  non-resident  about 
to  fail  in  business,  yet  has  property  in  the  hands  of  third  per- 
sons, it  is  common  for  creditors  to  sue  out  attachments  and  sum- 
mon third  persons  as  garnishees,  in  great  haste,  making  quite  a 
race  for  priority.  Under  such  circumstances,  it  is  very  common 
for  several  writs  to  be  sued  out  simultaneously,  or  what  is  the 
same  thing,  served  simultaneously;  and  the  notices  to  garni- 
shees, in  the  hands  of  one  officer,  may  be  served  about  the  same 
time.  The  general  rule  that  the  first  attachment  gives  priority 
of  lien  over  subsequent  ones  applies  to  the  first  garnishment 
likewise. 

The  clerk  of  court  ought  to  issue  writs  of  attachment  in  the 
order  in  which  the  suits  are  instituted  but  is  not  bound  to  with- 
hold the  second  writ  because  the  plaintiff  in  the  first  suit  fails 
to  call  for  it  in  time.  When  there  are  several  demanded  writs 
ready  for  issue,  he  has  no  right  to  refuse  delivery  to  the  first 
applicant,  who  may  not  be  the  first  of  the  plaintiffs  in  the 
attachment  suit.  If  the  first  plaintiff  thus  loses  his  priority, 
he  must  attribute  the  loss  to  his  own  laches.  Any  par- 
tiality shown  by  the  clerk  to  a  subsequent  plaintiff 
would  render  such  officer  liable  for  whatever  loss  might  ensue. 
If  he  issues  a  subsequently  demanded  writ  before  that  first 
demanded  and  thus  enables  a  second  or  later  suing  creditor  to 
gain  the  first  position  in  rank  of  lien,  there  would  be  a  viola- 

»  Bergman  v.  Sells,  39  Ark.  97 ;  Patterson  v.  Stephenson,  77  Mo.  329. 


PKIUKITV    OF    GAKJS'ISIIMENT.  489 

tion  of  official  obligation  on  the  part  of  tlie  clerk,  and  liahility 
in  damage  to  the  party  injured.  No  injury  would  be  inliicied 
however,  whatever  the  (tnimns  of  the  clerk,  if  the  iirst  ordered 
writ  should  be  ready  when  called  for,  and  should  be  delivered  to 
the  first  plaintift",  notwithstanding  the  second  had  been  first  pre- 
pared, if  the  second  plaintiff  had  not  received  it.  If  both  be 
prepared  simultaneously  by  different  deputies,  there  would  seem 
to  be  no  necessary  partiality  or  collusion,  even  though  the  sec- 
ond plaintiff  get  his  writ  first  by  calling  first.  In  such  case 
the  clerk  cannot  be  charged  with  unfaithfulness  or  neglect  of 
duty,  unless  there  are  other  circumstances  to  show  a  design  to 
aid  one  of  the  attaching  creditors  to  the  injury  of  another, 
which,  coupled  with  the  wrongful  act,  would  constitute  malfeas- 
ance. But  such  malfeasance  must  result  in  actual  loss  to  the 
litigant  whom  the  clerk  meant  to  delay,  before  an  action  would 
lie  against  such  officer;  at  least  before  an  action  would  lie  for 
anything  more  than  nominal  damages. ^ 

Garnishments  by  more  than  one  creditor,  competing  with  each 
other,  take  precedence  in  the  order  of  service,  as  observed 
Lefore.3  This  depends,  of  course,  upon  the  maintenance  of  the 
attachments  and  their  perfection  by  judgment  and  levy.  One 
"who  abandons  his  attachment,  though  by  a  compromise  with  the 
defendant  by  which  it  is  agreed  between  them  that  he  shall  take 
the  property  attached,  and  who  thereupon  dismisses  his  action, 
or  who  dismisses  it  for  any  reason,  loses  his  rank,  and  the  junior 
attachers  take  the  property  in  due  order — the  first  of  the 
juniors  being  satisfied,  the  second  succeeding,  and  so  on.^ 

Where  there  is  a  limit  fixed  by  statute  to  the  duration  of  the 
lien  of  an  attachment  upon  mesne  process,  (as,  for  instance, 
that  it  shall  continue  only  thirty  days  after  judgment,)  the  first 
lien  might  expire  with  the  period,  and  the  second  thus  gain  the 
first  rank.  If  there  is  a  final  judgment  for  the  defendant  in  the 
first  attachment  suit,  the  lien  of  the  second,  sustained  by  judg- 
ment, would  gain  the  first  rank.     Though   the  decree   against 

»  Lick  1).  Madden,  36  Cal.  208.  «.  Weatlierhead,   33   Vt.   765;    Berg. 

2  Joluison  V.  Griffith,  3  Cr.  C.  C.  199 ;  man  v.  Sells,  39  Ark.  97. 

Moore  v.   Holt.    10   Gratt.  284;  Ers-  »  Cole  «.  Woos^ter,  2  Ct.  203;  Bran- 

kine  v.  Staiey,  12  Leigh,  406;  Wilder  don  Iron  Co.  v.  Gleasou,  24  Vl.  228, 


490  JUDGMENT    SUSTAINING    ATTACHMENT. 

the  defendant  be  appeul;vble,  yet,  if  not  appealed  in  due  time, 
the  lien  would  be  as  effectual  as  if  there  had  been  a  confirtna- 
tion  of  the  judgment  by  the  appelhite  court.  The  law  must 
be  strictly  construed  when  liens  are  being  marshalled;  the  lirst 
attacher  who  has  legally  lost  his  rank  cannot  regain  it  in 
equity.  1 

Priority  of  garnishment  when  obtained,  like  priority  of 
attachment  in  the  hands  of  the  defendant  himself,  must  be  fol- 
lowed up  by  judgment  maturing  the  lien,  to  preserve  it  from 
supercedure  in  rank  by  later  garnishments.  Originally  all  the 
creditors  are  ordinary  ones,  lienless,  standing  on  equal  grounds. 
The  only  advantage  one  has  over  another  in  a  contest  grows 
out  of  the  superior  vigilance  and  diligence  of  him  who  makes  the 
earlier  o-arnishment.  Tlie  highest  rank  among  the  immature 
liens  created  by  the  garnishments,  belonging  to  the  lirst  inter- 
rogator who  has  had  the  garnishee  served,  may  be  lost  by  any 
act  of  his  that  would  dissolve  the  attachment  and  release  the 
lien. 2  The  lien  is  sometimes  said  to  be  dissolved  when  there 
is  judgment  for  defendant,  but  the  efl'ect  of  such  judgment  is 
to  retroact  upon  the  attachment  or  garnishment  so  as  to  make 
it  nugatory  from  the  beginning.  Instead  of  dissolving  a  lien, 
it  makes  the  fact  manifest  that  there  never  has  been  a  lien  in 
the  sense  of  a  right  in  the  thing  attached  to  the  amount  un- 
justly or  illegally  claimed,  or  claimed  under  circumstances  that 
never  legally  warranted  the  remedy -by  attachment. 

When  there  is  judgment  for  the  plaintiff  upon  the  confession 
of  -the  defendant,  is  there  a  release  of  the  lien  so  far  as  junior 
attachers  are  concerned?  If  the  confession  of  judgment  is 
before  the  return  of  the  attachment  writ,  it  could  hardly  be  said 
to  merge  any  attachment  lien  into  a  judgment  lien.  Of  course 
the  judgment  lien  would  be  none  the  worse  for  this,  so  far  as 
the  direct  relations  between  the  judgment-creditor  and  the  judg- 
ment debtor  are  concerned;  but  the  question  is,  would  sucli 
judgment  have  priority  in  execution  directed  against  goods  or 
debts  attached  or  subjected   to  garnishment,  over  junior  judg- 


1  Suydam  et  al.   v.  Huggeford,  23  ^  Suydam  v.  Huggeford,  23    Pick. 

Pick.  465.  .    465. 


PRIORITY    OF    GARNISHMENT.  491 

ments  rendered  without  confession  and  pursuant  to  giirnislmieiit 
or  attachment,  and  for  the  perfection  of  the  liens?  Certainly 
the  first  phiintitf  could  not  retain  priority  of  lien  by  comprom- 
ising Avith  the  defendant,  accepting  attached  property  in  satis- 
faction of  the  claim,  and  dismissing  his  suit;  and  it  M'oukl  seem 
that  a  confession  of  judgment  by  the  defendant,  under  tlie 
circumstances  suggested,  would  give  the  plaintiff  no  better  po- 
sition, in  relation  to  competing  junior  attachers,  than  such  com- 
promise would  give.i  As  a  general  rule,  the  attaching  credi- 
tor, during  his  right  to  create  a  lien  by  the  operation  of  law 
upon  given  circumstances,  must  reasonaljly  follow  the  law;  for, 
though  junior  competing  creditors  are  not  competent  to  inter- 
fere between  him  and  the  defendant  for  the  purpose  of  pointing 
out  unsubstantial  irregularities,  they  have  such  right  as  their 
interest  gives  to  show  that  the  first  attacliment  has  lost  its  hold 
by  the  failure  of  the  senior  attacher  to  follow  the  law. 

An  amendment  of  a  writ  may  be  retroactive  upon  the  ques- 
tion of  a  garnishee's  liability.  Although  tliere  could  be  no 
judgment  against  him  on  an  answer  that  he  owes  the  firm  of 
which  the  defendant  is  a  member,  yet  if  afterwards  the  firm  is 
made  the  party  defendant,  the  garnishee  may  be  held  bound 
under  such  answer.  3  Meanwhile,  however,  the  rights  of  other 
persons  might  intervene;  w^its  in  otlier  cases  might  reach  the 
fund  or  debt  as  that  of  the  firm,  and  the  retroaction  of  the 
amendment  would   be  inadecj[uate    in  the  contest  between  the 


^Cole  r.  Wooster,  2  Ct.  203;  Mur-  soon  as  the   writ  was   amended    by 

ray  i\  Elrige,   2  Vt.   388;    Brandon  joining    Bristol    as    defendant,    the 

Iron  Works  ?).  Gleason,  24  Vt.  228;  trustee  still  holding  the   fund,     *    * 

Hall  V.  Walbridge,  2  Aikens,  215.  no  rights  of  other  persons  having  in- 

*  Sullivan  v.   Langley,   128   Mass.  terveued,  and  it  being  conceded  that 

237:     "The   first  service   upon   the  the   two   defendants   comprised   the 

trustee  of  a  writ  in  which  Alderman,  firm  of  J.  F.  A.  &   Co.  and  that  the 

but  no  partner  of  his,   was   then  a  fund   belongs   to  them,  tJie  previous 

jirincipal  defendant,  did  not  indeed  attachment  heeame  valid,  aw^  WxeXvus- 

create  a  valid  attachment  of  the  debt  tee  was  at  once  chargeable  upon  his 

due  from  the  trustee  to  the  partner-  original  answer.     *    *    West  t-.  Plait, 

ship  of  J.  F.  Alderman  &  Co.  Howes  116  Mass.   808;  Terry  v.  Sisson,  125 

i).  Waltham,  18  Pick.  451;    Hoyt  «.  Mass.   560;  Wright  v.   Herrick,  125 

Kobinson,  10  Gray,  371;    Bultinch  v.  Mass.  154. 
Wiucheubach,  3  Allen,  161.     But  as 


492  JUDGMENT    SUSTAINING    ATTACHMENT. 

writs  for  priority.  The  attacliiag  creditor  who  first  garnishees 
tlie  linn's  credit  must  necessarily  outrank  him  who  does  so 
later  by  a  reactory  amendment;  for  the  reaction  cannot  make 
the  attachment  as  of  the  original  date  of  the  summons,  if  there- 
by other  persons  would  be  injured. 

Although  attachment  writs  may  be  amended,  under  certain 
circumstances,  so  that  the  change  has  a  retroactive  efiect  when 
no  interest  of  others  than  the  parties  to  the  suit  are  thereby 
aifected,  yet  a  change  of  circumstances  cannot  render  an  attach- 
ment valid,  if  void  when  executed.  The  validity  must  be 
judged  by  the  facts  existing  at  the  time  of  the  levy,  i  If,  when 
the  garnisliee  is  summoned,  the  state  of  facts  then  is  that  he 
owes  the  defendant  but  is  under  an  agreement  with  him  to  off- 
set the  debt  against  another,  he  is  mt  chargeable;  and  though 
such  airreement  should  afterwards  be  abrog-ated,  the  chano-e  of 
circumstances  will  not  retroact  so  as  to  render  the  garnishee 
chargeable  on  his  first  summons. ^  He  miglit  be  reached  by  a 
second  summons  and  a  second  declaration  to  him  by  tlie  officer 
that  the  property  and  credits  of  the  defendant  are  attached  in 
the  garnishee's  hands,  followed  by  interrogatories;  or,  a  junior 
attacher  might  summon  such  garnishee,  disregarding  the  prior 
attempt  to  hold  him,  and  successfully  attach  in  his  hands  after 
the  agreement  had  been  abrogated.  The  first  attempt,  at  a 
time  when  the  garnisliee  was  not  chargeable,  could  have  no 
effect  whatever.  The  second,  when  the  garnishee  had  become 
chargeable,  would  really  be  the  first  attachment,  and  therefore 
would  create  the  only  lien. 

Sec.  10.    Simultaneous  Seizures. 

Simultaneous  service  of  several  attachments  creates  equal 
liens.  3      Equal  liens  share  equally  in  distribution — not  propor- 

>  Hancock  v.  Colyer,  99  Mass.  187;  Savage,  1  B.  Mon.  2G0;  Burkhardt  «.  . 

Meacliam  v.  McCorbitt,  3  Met.  352.  McClellau,  15  Abb.  Pi:  243;  Gates  v. 

2  O'Brien  v.  Collins  &  Trustee,  124  Buslmell,  9  Ct.  530;  Fitch  v.  Waite, 
IMass.  98.  5  Ct.    117;  Taffts  v.  Manlove,  14  Cal. 

3  Wilson  V.  r,lake,  53  Vt.  305;  Stef-  47 ;  JNlcCobb  v.  Tyler,  2  Cr.  C.  C.  199; 
fens  V.  WanVioeker,  17  S.  C.  475;  Griirsley  i\  Love,  Id.  413;  Howard  w. 
Poud  V.  Grililnj  I  Ala.  078;  Sewell  v.  Clark,  43  Mo.  344. 


SIMULTANEOUS    SEIZUKE.  493 

tionatoly  to  the  amounts  claimed.  In  sucli  case,  all  of  tLc 
attacliments  are  of  equal  force,  and  no  just  rule  can  give  one 
the  advantage  over  another.  The  rule  that  the  law  disregards 
fractions  of  a  day  is  inoperative  when  it  would  work  injus- 
tice. ^  Were  there  two  equal  in- date  of  service,  should  one  be 
allowed  half  of  his  claim  and  the  other  the  remaining  half,  or 
should  one  take  half  the  proceeds  of  the  property  attached  and 
the  other  the  remaining  half?  The  latter  is  the  rule.  The 
creditor  claiming  a  thousand  dollars,  competing  with  another 
claiming  five  hundred,  would  get  no  more  than  half  the  pro- 
ceeds should  they  amount  to  one  thousand  dollars  or  less. 
The  rule  is  the  same  as  if  there  were  two  simultaneous  convey- 
ances of  land,  when  eacli  of  those  to  whom  the  whole  is  thus 
nominally  conveyed  would  take  a  moiety.  2  The  same  piece 
of  land,  being  twice  devised  in  the  same  will  to  two  different 
persons,  goes4ialf  to  one  and  half  to  tlie  other,  Tliouo-h  Lord 
Coke  thought  the  last  devise  should  pi-evail  and  carry  the 
whole,  the  rule  has  been  settled  that  either  takes  a  moiety. 
Competing  simultaneous  attachments  are  somewhat  analoo"ous 
to  such  conveyances  and  devises.  One's  right  is  met  by 
another's  equal  right,  and  there  is  no  more  equitable  rule  than 
to  divide  the  proceeds  into  aliquot  parts  and  distribute 
accordingly. 3 

Each  of  several  judgment  creditors  having  co-mplete  attach- 
ment liens  of  equal  rank,  is  entitled  to  have  his  judgment  wholly 
satisfied  out  of  the  attached  property,  could  he  have  it  without 
injury  to  his  competitors;  but,  as  he  cannot,  the  equitable  rule 
is  that  the  proceeds  must  be  divided  as  above  indicated.  The 
attachers  hoM per  my  et per  tout.'*'  Judgment  liens  were  held 
equal  in  raidc,  rendered  in  cases  in  which  trustee  writs  had  been 
simultaneously  delivered  and  attachments  simultaneously  made; 

»  Neale  v.  Ultz,  75  Va.  480,  bell  v.  Rnger,  1  Cow.  215;  Thurston 

2  Coke  Litt.  21;  lb.  112,  note;  «.  Huntington,  17  N.  H.  438;  Nutter 
Plowd.  Cora.  541;  Countess  of  Kut-  v.  Connett,  3  B.  Mon.  1!.'9;  Kennonv. 
laud's  Case,  5  Coke,  25.  Ficldin,  6   Id.  414;    Cla}-  «.  Scolt,  7 

3  Davis    V.    Davis,    2    Cnsh.    Ill;  Id. 554. 

Shrove  v.  Dow,  13  Mass.  529;  Camp-  *  Sigourney   v.  Eton,  14  Pick.  415. 


4:94  JUDGMENT    SUSTAINIXG    ATTACHMENT. 

and  an  aliquot  part  ^vas  accorded  to  each  judgment  creditor.^ 
And  as  two  attachments  are  simultaneous,  one  cannot  acquire 
priority  over  the  other,  with  respect  to  the  judgment  lien,  by 
the  prior  issue  of  execution  against  the  whole  of  the  attached 
property,  even  though  the  other  should  direct  execution  against 
s  moiety  only  and  at  a  later  date.* 

This  rule  of  distribution  is  not  without  exceptions.  If  the 
aliquot  part  falling  to  one  of  several  attachers  is  greater  than 
the  amount  of  judgment  obtained  by  him,  the  surplus  is  divisi- 
ble among  the  rest.  A,  pro  rata  division  of  the  proceeds, — the 
rate  having  reference  to  the  amount  which  each  attacher  has 
recovered — is  the  practice  iu  some  States.  ^ 

Sec.  11.    Competition  with  Mortgage  Liens. 

A  creditor  who  has  notice  or  knowledge  of  the  fact  that  cer- 
tain  property  has  been  mortgage'd,  cannot  attach  it  so  as  to  gain 
priority  over  the  mortgagee,  even  tliough  his  levy  should  pre- 
cede the  recording  of  the  mortgage.  The  rule  is  that  he  is  in 
no  better  position  than  a  purchaser  with  notice  would  be;  and 
certainly  such  a  purchaser  cannot  defeat  an  unrecorded  mort- 
gage. It  is  against  conscience — it  is  fraud  in  a  purchaser, 
knowincr  of  the  mortfjagpe,  to  collude  with  the  mortofaofor  in  an 
attempt  to  do  wrong  to  the  mortgagee.  It  may  be  said  that 
fraud  is  the  reason  fur  the  rule  with  respect  to  such  purchasers 
but  that  tliat  reason  will  not  hold  good  with  respect  to  an  attach- 
ing creditor  who  has  notice  of  the  existence  of  the  unrecorded 
inorto^aire.  It  mav  be  said  that  he  has  rights  as  well  as  the 
mortgagee;  that  both  may  be  creditors  seeking  to  secure  their 
just  dues,  and  that  his  vigilance  should  prevail  over  the  other's 
laches  in  the  race  for  priority.  But  the  fact  is  that  between 
the  debtor  of  both,  and  the  mortgagee,  a  valid  lien  has  been 
created  upon  the  property;  it  is  not  a  lien  that  will  be  recog- 
nized by  the  world  at  large,  for  want   of  notice  by  recordation; 

'  Rockwood   r.  Varnum,  17    Pick.  ^  Porter  r.  Earthman.  4  Yerg.  3oS; 

2S9.  292.  Love  r.  Harper.  4  Humpli.  113;  Hill 

»  Duiaut  r.  Johnson,  ef  aZ.  19  Pick.  t.   Child.   3   Dev.    2(i5:  Freeman   -c. 

544.  Grist.  1  Dev.  &  Ball.  217. 


COMPETITION    WITH    MORTGAGE    LIENS. 


495 


but  it  is  one  tliat  the  notified  creditor,  who  subsequently 
attaches,  is  bound  to  respect;  tind,  although  he  may  attacli 
without  colhision  with  the  debtor,  yet  could  lie  succeed  in  his 
attachment  he  would  kno\vino-ly  do  the  mortgagee  a  wrong;  he 
would  collect  his  debt  of  property  from  which  the  mortgagee 
had  the  right  of  collecting  his;  he  would  thus  defraud  the 
mortgagee. 

The  rule  seems  to  be  well  founded  that  an  attaching  creditor 
with  notice  of  an  unrecorded  mortgage  cannot  acquire  a  higher 
lien  than  that  which  the  mortgagee  has  previously  acquii-ed, 
and  cannot  put  himself  in  a  better  position,  with  respect  to  the 
mortgage,  than  the  purchaser  with  notice  of  such  unrecorded 
mortgage  would  occupy.  ^ 

The  attaching  creditor,  however,  would  gain  rank  above  the 
mortgagee,  should  he  attach,  without  notice  and  in  good  faith, 
prior  to  the  recording  of  the  mortgage.  ^  And  so  also  if  the 
mortgage  is  recorded  but  with  an  inadequate  description  of 
the  debt  to  be  secured^ — not  sufficient  as  notice. 

If  knowledge  is  proved,  creditors  are  incapable  of  creating 
a  lien  in  their  own  lavor,  by  attachment  of  the  mortgaged  prop- 


1  ]\rean  v.  New  York,  Housatonic 
&  Northern  K.  R.    Co.   45  Ct.    205 ; 

•Sib]ey'«.  Lefflngwell,  8  Allen,  584; 
Lawrence  «.  St  rattoa,  6  Cusli.  107; 
Pomeroy  v.  Stevens,  11  Met.  244; 
Curtis  V.  Munday,  3  Mot.  405;  Cof- 
fin  v.Hiiy,  1  Met.  212;  Pi  lost  v.  Rice, 
1  Pick.  164;  Prescot  v.  Heard,  10 
Mass.  60;  Daniels  v.  .'^orrells,  9  Ala. 
406;  Dixon  v.  Lacosle,  1  Smedes  & 
M.  70;  Taylor  !■.  Ecliford,  11  Id.  21; 
Walker  y.  Gilbert,  Free....  (Miss.)  85; 
iMorton    v.   Robards,    4    Dana,   258. 

2  Ilnrt-y.  Redd,  61  Ala.  85;  Carter 
V.  Champion,  8  Ct.  540;  Theall  v. 
Disbrow,  39  Ct.  318 ;  Bacon  v.  Thomp- 
son,  14  N.  W.  Rep.  312,  re-affirming 
Roothby  v.  Brown,  40  la.  104,  and 
llickok  V.  Buell,  51  la.  655,  and 
overruling  Kcssey  v.   McIIenry,  54 


la.  187.  See  Cummins  v.  Tovey,  39 
la.  195;  Allen  v.  McCalla,  25  la.  464, 
482;  McGarran  v.  Haupt,  9  la.  83; 
Crawford  c.  Benton,  6  la.  476;  Miller 
V.  Bryan,  3  la.  58. 

3  Bramhall  v.  Flood,  41  Ct.68.  The 
rule  is,  in  Connecticut,  that  "the 
condition  of  a  mortgage  deed  must 
give  reasonable  notice  of  the  incum- 
brance on  the  larid  mortgaged  in 
order  to  affect  the  creditors  of  the 
mortgagor  who  have  no  notice  of  the 
real  incumbrance."  Pettibone  v. 
Griswold,  4  Ct.  158;  Shepard  v. 
Shepard,  6  Id.  37 ;  Stoughton  v.  Pas- 
co, 5  Id.  444;  Hubbard  v.  Savage,  8 
Id.  215;  Booth  v.  Barnum,  9  Id.  286; 
Sanford  v.  Wheeler,  13  Id.  165- 
North  V.  Belden,  Id.  376;  Hart  v 
Chalker,  14  Id.  77. 


496  JUDGMENT    SUSTAINING    ATTACHMENT. 

erty,  of  siicli  character  as  to  ontranlv  the  mortgage.  It  has 
been  tlioiight  frauclnlent  for  a  person,  with  notice,  to  attempt  to 
forestall  such  a  lien  while  the  lien-holder  is  using  due  diligence 
to  get  it  recorded.  1 

If,  however,  the  lien  is  not  yet  good  between  the  contracting 
parties,  the  creditor  wishing  to  attach  is  not  bound  to  respect 
the  intention  of  those  parties.  They  may  intend  to  make  a 
mortgage,  and  the  attaching  creditor  may  make  his  lien  first. 
This  he  has  the  right  to  do;  and  an  attachment  lien  created 
under  such  circumstances  will  outrank  a  mortgage  subsequently 
made  and  duly  recorded, 2  and  will  be  in  advance  of  an  assign- 
ment not  fully  consummated.* 

One  who  takes  a  mortgage  on  attached  property  is  presumed 
to  have  notice  of  the  attachment ;*  and  he  takes  rank  below  the 
attaching  creditor, ^  just  as  any  later  attacher  does.  The  own- 
ership of  the  attached  property  being  in  the  defendant  up  to 
the  time  of  sale,  he  is  perfectly  competent  to  mortgage  it,  or 
to  create  any  other  form  of  lien,  by  convention,  though  he  can- 
not, by  any  such  act,  dislodge  the  lien  previously  acquired  by 
the  first  attacher.  In  marshalling  the  liens,  they  are  ranked 
according  to  their  date,  whether  they  are  attachment  liens,  mort- 
gages or  privileges  of  any  other  description,  except  such  as  liave 
priority  of  law  because  of  their  nature — such  as  court  costs, 
burial  expenses  and  the  like.  The  law  of  notice  applies  to  all, 
though  presumption  of  notice  varies  in  different  States.  Where 
recordation  of  attachment  liens  are  required  in  order  to  give 
notice  to  third  persons,  the  attacher  cannot  neglect  it  with 
impunity. 


*  Priest  V.  Rice,  1  Pick.  168.  mortgagee  wliose  mortgage   is  later 
2  Cusliing  V.    Hurd,   4   Picl?.  253,  than  tlie  original  attacliment  though 

257.  older  than    the  tiling   of  the  junior 

'  Warden  v.  Adams,  15   Mass.  233.  attachers'  claims.     Fee  v.  Moore,  74 

*  Fee  V.  Moore,  74  lud.  319.  Ind.  319.     In  this  State  the  right  of 
^  Huxley  v.  Harrold,    63  Mo.  516.  creditors  to  tile    claims  terminates 

In  Indiana,  where  creditors  may  with  the  final  judgment  and  order  of 
come  into  the  original  attachment  sale  of  the  attached  property.  Coop- 
suit  and  file  their  claims,  all  to  be  er  v.  Metzger,  74  Ind.  544,  in  con- 
paid  ;)ro  rata  if  allowed,  all  of  such  struction  of  2  R.  S.  of  Ind.,  1876,  p. 
junior    attaches    will    outrank    the  110. 


COiirETITION    WITH    MOKTGAGE    LIENS.  407 

After  two  tracts  of  land  liave  been  attaclied,  one  of  tliem 
may  be  released  and  the  other  held  to  secure  the  whole  amount 
of  the  claim  sued  upon.  If,  after  the  attachment  of  both,  the 
debtor  should  mort<:;-age  one  tract,  and  that  tract  should  be  the 
one  upon  which  the  attachment -is  retained,  the  mortgagee  will 
not  be  entitled  to  priority  over  the  attaching  creditor  to  the 
amount  of  the  value  of  the  released  tract.  In  other  words,  the 
attaching  creditor  did  not  give  up  his  right  to  make  all  his 
claim  out  of  one  tract  by  releasing  the  other  from  seizure.  ^ 
The  attachment  was  tota  in  toto,  et  tota  m  qualibet  'parte. 
Every  portion  of  the  property  attached  was  liable  for  the  whole 
of  the  debt  which  the  attachment  was  meant  to  secure.  This 
doctrine  has  been  held  with  respect  to  a  mortgage, 2  and  the 
same  reasoning  will-apply  to  an  attachment. 

If  one  of  two  tracts  of  land,  or  one  of  two  articles  of  per- 
sonal property,  after  attachment,  has  been  released,  it  is  as 
though  it  had  never  been  attached;  so  that  a  mortgage  put  upon 
it  after  attachment,  or  a  second  lien  by  attachment  put  upon  it 
after  the  first  attachment  would  hold  good,  without  the  necessity 
of  removal,  as  the  highest  privilege  continuing  to  exist  against 
the  property. 

Though  a  mortgage  of  personal  property  be  given  merely  to 
secure  the  mortgagee  against  liability  as  endorser  for  the  mort- 
gagor, the  lien  thus  created  outranks  that  made  by  a  subsequent 
attachment  of  the  property  thus  mortgaged.  Though  the  note 
endorsed  may  not  have  matured,  and  the  lien  upon  the  mort- 
gaged property  be  therefore  contingent,  yet  the  mortgagee  has 
preference  over  the  attaching  creditor.-'' 

The  creditor,  if  not  prevented  by  the  mortgage  lien  from 
attaching,  may  tender  to  the  mortgagee  the  amount  of  his 
eventual  liability,  if  he  wishes  to  remove  the  prior  lien.  By 
paying  or  tendering  that  amount,  the  creditor  can  retain  his 
attachment.'*  The  officer  coidd  not  take  actual  possession  of 
the  property,  so  as  to  detain  it  under  the  attachment  writ,  unless 

» Johnson  ?).  Bell,  58  N.  H.  395.  Mass.  164;  Codman   v.   Freeman,   3 

2  Bagley  ^.  Tate,  10  Rob.   (La.)  45.  Cusb.  30G;  Flanagan   v.    Cutler,  121 

.    « Rogers  ti.  Abbott,  138  Mass.  10-3.  Mass.    9ti;     Goulding    v.    Hair,  133 

*-Id;     Bicknell   v.    Cleverly,     1^5  Mass.  78. 

32 


498  JUDGMENT    SUSTAINING    ATTACHMENT. 

the  creditor  should  pursue  this  course,  when  the  raortgugee  has 
the  custody  of  the  property.  Tlie  latter  would  be  the  lawful 
custodian.  If,  under  such  circunisLances,  the  property  should 
he  attached,  as  in  the  hands  of  a  third  person,  and  the  mort- 
gagee garnislied,  the  lien  so  created  would  be  subsidiary  to  that 
of  the  mortgage.  If  the  attaching  creditor  would  gain  imme- 
diate custody  of  the  thing  by  the  officer,  he  must  Urst  ])ay  the 
mortffao;e. 

Though  a  partner  may  have  mortgaged  partnership  property 
to  secure  his  individual  creditor,  the  latter  will  not  have  a 
higher  privilege  than  a  creditor  of  the  firm  who  subsequently 
attaches  the  same  property  for  a  debt  of  the  firm.  Such  attach- 
ment lien  will  outrank  the  mortgage,  as  it  will  also  outrank  a 
prior  attachment  against  the  same  property  in  a  suit  against  one 
of  the  partners  only  for  his  sej)arate  debt. 

A  mortgage  upon  property  of  n  partnership  executed  by  a 
member  thereof  to  secure  his  separate  debt  will  hold  good  if 
the  other  members  release  their  claims  upon  the  property  thus 
mortcraged.  Thouorh  at  the  time  such  mortoragre  is  ejiven,  the 
mortgagor  owns  only  his  share  of  the  surplus  after  partnership 
debts  are  paid,  and  although  the  release  of  the  claims  of  other 
partners  is  made  after  the  execution  of  the  mortgage,  yet  the 
act  purported  to  cover  the  entire  property,  and  the  release  by 
the  other  partners  is  a  ratification  of  the  act.  ^ 

There  is  a  condition  when  the  lien,  by  mortgage  or  by  attach- 
ment, depends  upon  a  settlement  of  the  partnership  aftairs; 
there  is  none,  when  the  lien  is  upon  partnership  property  in  a 
suit  against  the  partnership.  This  seems  to  be  the  only  reason 
why  an  attachment  lien  on  partnership  pi-operty  created  by  a 
suit  against  a  partnership  should  be  allowed  to  outrank  a  prior 
lien  created  against  such  property  in  a  suit  against  a  member 
of  the  firm  for  his  own  debt. 

To  seize  and  hold  what  the  defendant  has  sold  and  delivered, 
fraud  and  indebtedness  to  the  plaintiff  before  sale  must  be 
proved.  2 

One  who  has  a  lien  on  goods  for  money  advanced  must  have 

'  So  Iielrl  substantially  in  Fargo  v.  *  Day  v.  Kendall,  GO  Iowa,  414. 

Ames,  45  Iowa,  491. 


COMPETITION    WITH    MOliTGAGE    LIENS.  490 

it  recorded  or  must  give  notice  to  an  attaching  creditor  if  lie 
would  maintain  his  lien  as  superior  to  that  of  such  creditor,  i 
If  the  attacher  knows  of  the  existence  of  the  lien  for  advances, 
or  that  of  a  vendor  for  purchase  money,  it  is  immaterial  from 
what  source  his  knowledge  is  obtained;  he  is  bound  to  respect 
it.*  Any  notice  of  such  pre-existing  liens  answers  the  purpose 
of  recording,  so  far  as  the  attacher  is  concerned.  3  The  burden 
is  on  the  prior  lien-holder  to  show  notice;*  and  it  has  been 
thought  that  he  must  show  that  the  notice  emanated  from  him- 
self;5  but  if  the  attacher  knew  of  the  fact  it  ought  not  to  mat- 
ter whence  his  information  came.  Whenever  knowledge  is 
brought  to  the  court  that  attached  property  does  not  belong  to 
the  debtor  free  from  incambrancc,  but  that  there  are  liens  rest- 
ing upon  it  older  than  the  attachment  lien,  there  should  be  no 
disposition  made  of  it  wliich  would  pay  the  attaching  creditor 
at  the  cost  of  the  prior  lien-holders. 

If,  prior  to  attachment,  the  defendant  has  put  property  into 
the  hands  of  one  of  his  creditors  to  be  held  till  payment,  the 
person  thus  holding  has  a  lien  superior  to  that  of  the  subse- 
quently attaching  creditor, ^  If,  after  the  issue  of  the  writ, 
the  sheriff  holds  it  up  by  the  plaintiff's  order,  the  defendant 
may  make  a  valid  mortgage  which  will  outrank  the  attachment 
lien  created  by  a  subsequent  levy,'  This  is  the  law  of  priority 
everywhere  except  in  States  where,  by  statute,  the  attachment 
lien  arises  upon  the  issue  of  the  writ.  The  debtor  may  not 
only  create  a  valid  lien  by  convention  while  the  writ  is  in  the 
sheriff's  hands  but  unserved;  he  may  make  a  genuine  sale  of 
the  property  sought  to  be  attached.  Either  a  sale  or  a  mort- 
gage, made  under  such  circumstances,  may  be  in  good  faith. 

The  attaching  creditor  may  contest  the  mortgage,  and  resort 

»  Quinn  v.  Halbort,  55  Vt.  224,  227.  ter,  4  Id.  469. 

2  McPhail  V.  Gerry,  55  Vt.  174.  ♦  Wliitcomb    v.  Woodworth,  54  Vt. 

3Kelsey    v.    Kendall,   48   Vt.   27;  544. 

Allen  i;.  McAlla,  25  Iowa,   464;  Mc-  ^  gtevens  tj.  Wrisley,   30  Vt.   GOl; 

Govern  v.  Ilanpt,  9   Id.  83;  Boyd  v.  Bank  v.  Drury,  35  Id.  469. 

Beck,  29  Ala.  703;  De  Verdal  v.  ]\Ia-  ^  Qreely  v.  Retidiug,  74  Mo.  309. 

loone,  25  Id.  272;    Dearing  ■«.    Wat-  '  Gray's  Administrator  v.  Pattou's 

kins,    16    Id.   20;    Smith    &    Co.    ■;;.  Administrator,  13  Bush.  625. 
Zuchee,  0  Id.  208;  jNIagee  v.  Carpeu- 


500  JUDGMENT    SUSTAINING    ATTACHMENT. 

to  all  the  grounds  the  mortgagor  conlcl  urge  against  the  niort- 
£f:i£:ee,  in  oi-iler  to  protect  his  attachment  lien.^ 

The  attachment  oi)erates  only  on  the  defendant's  interest;  it 
cannot  displace  tlie  lien  of -a  third  party  already  acquired,  nor 
affect  his  title ;3  but  if  there  is  illegality  in  the  act  of  mortgage, 
the  attaching  creditor  is  competent  to  show  it.  He  not  only 
has  all  the  rights  of  the  mortgagor  in  his  attack  upon  the 
mortgagee,  l)ut  more:  he  is  not  estopped  from  exposing  a  simu- 
lated transaction  when  the  attachment-defendant  was  a  party  to 
the  fraud. 

Sec.  12.    Sale  by  the  Debtor  before  Seizure. 

The  title  to  real  estate  passes  from  the  vendor  to  the  vendee 
upon  the  completion  of  the  contract,  and  the  delivery  of  the 
deed  is  conclusive  between  the  parties.  The  recording  of  the 
deed  relates  back  to  the  date  of  the  contract,  though  not  in  such 
sense  as  to  affect  the  title  of  a  hona  fide  purchaser  who  has 
houffht  after  such  contract  and  before  such  record inrr.  The 
object  of  the  record  is  to  give  notice  to  the  world,  and  to  pro- 
tect subsequent  purchasers  from  imposition  as  well  as  to  secure 
the  first  vendee  from  disturbance, ^  But  registry  is  not  an 
exclusive  means  of  notification.  Knowledge  of  the  contract 
of  sale  and  delivery  of  the  unrecorded  deed,  however  acquired, 
is  equivalent  to  registry,  so  far  as  the  second  purchaser  is  con- 
cerned. Such  second  purchaser,  with  knowledge  of  the  first 
sale,  could  not  perfect  his  title  by  having  it  recorded  prior  to 
the  registry  of  the  first  transaction,  since  both  his  purchase  and 
his  registry  would  be  vitiated  by  his  fraud.*  Tlie  onus  of 
establishing  such  fraud  by  proving  knowledge  on  the  part  of 
the  second  purchaser  would  be  upon  him  who  should  attack 
such  recorded    title;    and    he   would    be  required  to  prove  it 

1  Pierce  «.  Hall,  12  Bush.  209.  Jackson  «.  Burgott,  10  Id.  457;  Dey 

2  Metts  «.  Ins.  Co.  17  S.  C.  120.  v.  Dunham,  3  Jolins.  Ch.    190;  Nor- 

3  Hall  v.  Gould,  79  111.  16.  cross  «.  Widgery,  2  Mass.  500;  Farns- 
*  Worseley  «.  De  Mattos,  1  Burr.  -worth?;.  Childs,  4  Id.  G37;   Davis  w. 

474;  Le  Neve    v.   Le   Nove,  3  Aik.      Blunt,  6  Id.  4b'J ;  I'rescolt  v.  Heard, 
654;  Jackson  «.  Shaip,  9  Johns.  16«;       lU  Id.  GO. 


SALE    BKFOliE    SEIZURE.  501 

clearly,  since  it  would  not  suffice  to  render  the  fraud  merely 
probable.  1 

An  attaelier  of  land,  who  knows  that  his  debtor  has  sold  it 
tliou<^h  the  deed  of  sale  has  not  been  recorded,  is  in  tiie 
same  predicament  as  that  of  a  second  purchaser  with  such  knowl- 
edge. The  title  havitig  passed  from  his  debtor,  he  cannot  attach 
the  property  as  that  of  his  debtor  without  attempting  a  fraud 
upon  the  vendee.  2  But  the  onus  is  upon  the  vendee  or  grantee 
to  show  knowledge  of  his  jDurchase  on  the  part  of  the  attach- 
ing creditor,  in  case  of  contest  between  them.  If  he  has  not 
come  into  possession,  or  made  improvements,  or  performed  some 
act  of  ownership,  the  presumption  would  be  against  the  grantee 
who  has  not  recorded  his  title. ^ 

An  attacher  of  land  who  does  not  know  that  his  debtor  has 
sold  it,  may  validly  attach  it  before  registry  of  the  sale,*  eveu 
though  the  deed  is  in  the  hands  of  the  registrar  for  the  pur- 
pose of  being  recorded. ^  In  such  case,  though  the  attachi no- 
precede  the  recording  but  for  an  liour,  the  creditor  is  entitled  to 
the  benefit  of  the  maxim,  ])rior  in  tempore^  potior  injure. 
This  rule,  liowever,  is  not  universal.  There  is  a  statutory  pro- 
vision in  California,  under  which  it  was  held  that  a  deed  executed 
prior  to  the  levy  of  a  writ  of  attachment,  but  recorded  after- 
wards, will  outrank  the  attachment. «  And  in  Missouri  it  was 
held  thatadeed  made  prior  to  an  attachment  but  recorded  after- 
wards, before  the  attachment  sale,  would  rank  the  attachment 
lien.' 

So  far  as  knowledge  of  a  previous  conveyance  affects  the 
validity  of  the  transaction,  the  attachment  of  land  is  like  the 
purchase  of  it.  Both  the  attacher  and  the  purchaser  of  land 
which  they  know  to  have  been  conveyed  previously,  are  alike  at 

iHine  ij.  Dodd,  2   Atk.  275;  Jack-  «?.  Routlege,  Cowp.   713;    Wyatt   v. 

son  V.  Given,  8  Johns.  137;   Jolland  Barwell,  19  Ves.  Jr.  435. 

«.  Stainbridge,  3  Ves.  Jr.   478;  Nor-  *  Jackson  w.  Chamberlain,  8  Wend, 

cross  y.  Widgery,  2  j\[ass.  500.  620;   Jackson  v.  Post,  15  Id.  588. 

2  Lamberton  ®.  Merchants'  Nation-  ^  Sigouruey  «.  Larned,  10  Pick.  73. 

al  Bank,  34  Mian.  281.  e  Hoag  y.  Howard,  55  Cal.  5G4. 

2  McMechan  i\  Griffing,  3  Pick.  149,  ''  First  National  Bank  «.  Hughes,  10 

157 ;  Priest  v.  Rice,  1  Pick.  1G4 ;  Doe  Mo.  App.  7. 


502  JUDGMENT    SUSTAINING    ATTACHMENT. 

fimlt.  "What  is  sufficient  notice  to  the  one  is  snfficient  to  the 
otlier.i 

Considered  as  in  the  nature  of  a  pnn-haser,  tlie  attaching 
creditor  is  deemed  to  have  made  his  |)urclinse  at  the  time  of 
the  laying  of  the  attacliment  writ  U])on  tlie  laud;  for,  if  exe- 
cution should  follow,  the  purchaser  at  the  sale  would  look  to  the 
state  of  things  existing  when  the  property  was  attached.  So 
far  as  the  validity  of  the  title  is  concerned,  the  legal  creation  of 
the  attachment  lien  is  all  important.  If  notice  of  a  prior  deed, 
unrecorded,  would  strike  the  attachment  with  nullity,  (as  it 
would  strike  a  purchase,)  when  must  such  notice  be  conveyed 
to  the  creditor:  when  he  attaches  or  when  he  proceeds  under 
execution  after  judgment  in  an  attachment  case?  It  is  when  he 
attaches — execution  bdng  merely  the  elFectuating  of  the  act 
then  begun.  3  An  attaching  creditor  can  be  on  no  higher  ground 
than  his  debtor,  in  attaching  equitable  interests. ^  He  cannot 
maintain  an  action  to  redeem  land,  covered  by  his  attachment, 
from  a  mortgage  executed  by  his  debtor. ^ 

An  attachment  lien  will  not  hold  good  against  an  equitable 
title.  Land  sold,  with  the  deed  not  recorded,  cannot  be  attached 
as  the  property  of  the  vendor  so  as  to  defeat  the  vendee's  unre- 
corded title,  if  the  vendee  was  in  possession  before  the  \^\^.f 
thus  putting  the  attaching  creditor  upon  inquiry. ^  If,  how- 
ever, a  valid  attachment  lien  has  been  acquired,  it  would  not  be 
lost  by  the  defendant's  subsequent  gaining  of  possession  by 
moving  upon  the  land.^ 

Sec.  13.    Assignment. 

The  owner  of  a  promissory  note  assigned  to  him,  which  is 
not  governed  by  the  law  merchant,  holds  it  sul>ject  to  all 
equities  existing  before  the  assignment.      He  cannot  disturb  the 

1  CotBu  v.  Eay,  1  Met.  212,215;  20.3,208;  Moore  w.  Reaves,  15  Kan. 
Priest'!).  Rice,  1  Pick.  164;  Somes  «.  150;  Jolmson  v.  Clark,  18  Kan.  157; 
Brewer,  2  Id.  184.  School    District  t.   Taylor,  19  Kan. 

2  Coffin  «.  Ray,  1  Met.  212.  287;  Greer  «.  Higgins,  20  Kan.  420, 
8  Wood  «.  Tliomas,  39  Teun.  160.  426. 

*  Fisher  v.  Tallman,  74  Mo.  39.  «  Hiatt  «.  Bulleue,  20  Kau.  557. 

^  Tucker  «.  Vandemaik,  21   Kan. 


ASSIGNMKNT.  *  503 

rip^lits  of  third  persons  acquired  through  judicial  proceedings 
brought  by  an  attaching  creditor,  (who  lias  no  notice  of  the 
assignment,)  against  the  maker  of  the  note.  Even  a  mortgage 
rnay  be  foreclosed  in  such  an  attachment  proceeding,  and  the 
purchaser  of  land  mortgaged  to  secure  such  a  note  as  that  above 
suggested,  would  acquire  good  title  to  the  land,  and  would  hold 
it  discharged  of  the  morti^-afye.^  A  iudi>;ment  rendered  airainst 
the  maker  as  garnishee,  in  an  attachment  suit  against  the  payee, 
is  a  good  defense  to  an  action  against  the  maker  by  an  assignee  of 
the  note,  brought  on  the  note,  if  the  maker  had  had  no  notice 
of  the  assignment  when  the  judgment  was  rendered  against  him 
as  garnishee.  2 

In  N"ew  York  it  was  held  that  the  sheriff's  title  rclntes  bick  to 
the  time  of  the  demand  and  gives  the  attaching  creditor  a  lien 
ranking  that  of  a  subsequent  assignee. ^  When  property  capa- 
ble of  manual  delivery  has  been  levied  wpon  by  a  sheriff  under 
a  warrant  of  attachment,  the  attaching  creditor  may  maintain 
an  action  to  have  a  prior  assignment,  (executed  by  the  defend- 
ant,) declared  fraudulent  and  void,  and  to  have  tlie  priority  of 
his  attachment  lien  established.  And  he  may  do  so,  thouo-h  the 
defendant  has  confessed  judgment  in  favor  of  the  assignee,  and 
execution  has  been  issued  upon  such  judgment. *  The  sheriff, 
if  sued  by  the  assignee  for  making  the  attachment  levy  on  the 
property  as  that  of  the  assignor,  may  show  tliat  the  assignment 
was  void  as  to  the  attaching  creditor. ^  But  the  fact  that  a 
general  assignment  is  void,  by  reason  of  an  insertion  in  the  act 
authorizing  compromise  with  debtors  and  sale  upon  credit,  does 
not  authorize  an  attachment  to  issue  under  §  636  of  the  Code 
of  Procedure.® 

In  llhode  Island,  an  assignment  must  be  without  preference, 
in  order  to  discharge  an  attachment,  except  the  preference 
specially  authorized  by  statute;''  and  there,  the  assignment  of 

'  Sbarts  v.   Await    ei   al.  73    Ind.  21  Tnd.  280;    Shetler  v.  Thomas,  16 

304.  lud.  223. 

2  Canaday  v.  Detrick  et  al.  63  Ind.  *  Anthony  «.  Wood,  29  Hun.  23.9. 

485;  Greeuman  v.  Fox,  54  Ind.  267;  *  Bates  v.  Plonsky.  28  Hun.  112. 

The  Ohio  &  Miss.  &c.  Co.  -y.  Alvey,  ^  Carr  v.  Van  Hoesen,  26  Hun.  316. 

43  Ind.  180;    Barton  v.  AHbright,  29  «  Milleken  v.  Dart,  26  Hun.  24. 

Ind.  489;  Schopjienhast  v.  Bollman,  ^  Noyes  ».  Johnson,  13  R.  I.  183. 


504  JUDGMENT    SUSTAINING    ATTACHMENT. 

partiiersliip  property  onlj,  when  the  debtor  has  other  assets, 
will  not  avoid  an  attuchnient.i 

A  debtor's  assip^nment  of  his  pro]icrty  held  by  a  third  person 
will  not  hold  against  a  prior  attachment  in  the  hands  of  such 
third  person  though  the  sheriff  had  been  denied  possession  on 
demand.  2 

An  afisiii'nment  made  in  one  State,  of  personal  property  in 
another,  is  doubtless  good  as  between  the  assignor  and  the 
assignee  so  soon  as  it  has  been  executed,  and  actually  or  con- 
structively delivered.  If  mailed  to  the  assignee,  it  is  construct- 
ively delivered  to  him  as  soon  as  it  is  put  into  the  post-oflice, 
since  the  carrier's  possession  is  that  of  hi  in  to  whom  he  bears 
the  letter  or  package.  No  actual  delivery  of  the  personal  prop- 
erty described  in  the  assignment  is  absolutely  necessary  to  the 
completion  of  the  title  of  the  transferee. ^ 

Is  such  assignment  good  as  to  third  persons?  Would  it 
defeat  an  attachment  of  the  property  made  after  the  mailing  of 
the  instrument  by  the  assignor  and  before  its  receipt  by  the 
assignee?  That  must  depend  upon  the  lex  rei  sitw.  If  the 
assignment,  made  in  another  State,  is  valid  against  third  per- 
sons by  the  law  where  the  property  is  situated;  if  the  policy 
and  the  juridical  morals  of  both  States  agree;  if  the  assignment 
would  not  have  contravened  the  law  of  the  State  in  which  it 
is  to  be  executed,  had  it  been  made  there,  the  transfer  is  ofood 
as  to  third  persons;  and  it  would  defeat  an  attachment  made 
after  the  constructive  deliver}^  of  the  instrument  but  before  its 
actual  receipt  by  the  assignee."* 

In  Missouri  it  was  held  that  an  assignment  which  was  void 
by  the  law  of  another  State  where  it  was  made,  would  outrank 
an  attachment  made  in  Missouri  by  a  non-resident,  when  the 
assignment  was  deliviered  before  the  attachment  was  served,  and 
was  recorded  before  the  writ  of  execution  under  the  attachment 
judgment  had  been  issued,  since  the  assignment  was  such  as 
would  have  been  valid  if  made  in  Missouri.^ 


1  Aldrich  V.  Arnold,  13  K.  I.  655.  *  Id. 

2  Antliony  v.  Wood,  29  Hun.  230.  ^  First   National   Bank  v.  Hughes, 
8  Johnson  v.  Sharp,  31  Ohio  St.  618.       10  Mo.  App.  7. 


ASSIGNMENT.  505 

If  an  apsio-nmeiit  is  Viilid  wlicre  inacle  but  void  Avlicre  it  is 
meant  to  have  effect,  it  ought  not  be  maintained  against  a  sub- 
sequent attachment  made  at  tlie  hitter  i)hice.  If  the  huv  of  the 
former  place  allows  preference  among  creditors  to  be  created 
by  the  assignment,  while  that  of  the  latter  inhibits  such  practice 
as  fraudulent,  the  assignment  cannot  be  enforced  in  the  latter. 

A  general  assignment  by  an  insolvent,  for  the  benefit  of  all 
his  creditors,  cut  off  an  attachment  made  within  four  months 
before  the  assignment,  by  provision  of  the  late  banla-npt  law 
of  the  United  States,  The  atljudication  vested  the  property  in 
the  assignees,!  ^g  that  law  is  no  longer  operative,  it  seems 
idle  to  discuss  whether  the  right  of  an  attaching  creditor,  vested 
under  the  statute  of  his  State,  could  be  constitutionally  divested 
by  a  subsequent  general  assignment  in  bankruptcy. 

Under  a  statute  of  Nevada,  the  attachment  lien  is  preserved 
and  may  be  enforced  by  judgment  and  execution,  notwithstand- 
ing an  order  staying  proceedings  against  the  insolvent  debtor  in 
pursuance  of  the  act  for  the  relief  of  insolvent  debtors. ^  In 
Oregon,  attachment  is  dissolved  by  an  assignment  to  creditors, 
and  a  subsequent  judgment  and  sale  in  the  attachment  proceed- 
ings are  void.^ 

In  any  State  having  a  general  statute  of  this  character,  it 
must  be  considered  that  a  creditor  suing  out  an  attachment 
does  So  subject  to  the  law;  that  his  right  by  reason  of  his  attach- 
ment is  only  conditionally  vested. 

An  attachment  lieu  on  the  property  of  a  firm  was  held  to 
entitle  the  holder,  who  had  had  it  matured  by  judgment,  to  in- 
tervene in  a  bankruptcy  proceeding  against  the  property  of  the 
firm,  subsequently  surrendered,  because  one  of  the  two  mem- 
bers of  the  assigning  firm  lived  out  of  the  country  so  that  the 
court  could  not  adjudge  both  to  be  bankrupts. *  This  seems 
right  wdien  it  is  considered  that  the  intervener's  judgment  was 

»  U.  S.  Rev.  Stat.  §  5044;  Barkers.  son,  95  U.  S.  ISO. 
McLeod,  14  Nev.  148, 153;  GoocThue  ^  Benjamin  v.  Stern,  14  Nev.  415. 

«.  King,  55  Cal.  377 ;  Risley  ■«.  Brown,  '  McKinney   v.    Balier,   9    Or.   74; 

67   N.  Y.  160;  Miller  v.  Bowles,  58  Ticheuor  v.  Coggins,  8  Or.  270. 
N.  Y.  353 ;  Morgan  v.  Campbell,  23  *  Burton  v.  Watson's  Case,  9  Ben. 

AVall.  CSl ;  Weot  Pbila.  Bank  v.  Dick-  324. 


506  JUDGMENT    SUSTAINING    ATTACIIMKNT. 

against  tlie  property  tliat  liad  hecn  attaclicd.  But,  after  tlie  fil- 
ing of  the  petition  in  bankruptcy,  no  attachment  lien  could  he 
eiibsequently  obtained  that  would  support  an  intervention  in  the 
bankruptcy  proceedings,  if  all  the  bankrupts  are  legally  before 
the  court.  1 

An  assignment  of  partnership  property  by  one  member  of 
the  firm,  if  ratified  afterwards  by  the  firm,  was  held  good  from 
its  date  as  to  the  assignee  l)ut  not  as  against  a  creditor  who  had 
attached  before  the  ratification.  2 

In  Georgia,  an  attachment  suit  need  be  against  no  more  than 
one  partner,  though  brought  on  a  debt  of  the  firm;^  and  that 
is  so  wherever  there  is  solidarity  of  obligation.  If  the  interest 
of  one  partner  is  to  be  executed  under  a  judgment  against  him, 
pro]>erty  belonging  to  his  firm  may  be  seized  in  order  to  sell 
such  interest,  in  Kansas.* 

Sec.  14.    Final  Decree  with  Privilege. 

Judgment  for  plaintiff  after  issue  joined  is  complete  as  a  per- 
sonal one,  and  may  be  executed  against  any  property  of  the 
defendant  not  exempt  by  law;  and  therefore  there  is  no  need  to 
enlarge  upon  it  in  a  work  on  attachment.  It  is  like  other  per- 
sonal judgments. 

Such  judgment,  however,  in  attachment  suits,  is  usually 
attended  by  the  addition:  "With  privilege  on  the  property 
attached."  This,  or  equivalent  words,  is  a  judicial  recognition 
of  the  attachment  lien;  a  perfection  of  the  previously  incipient 
right;  an  elimination  of  the  hypothetical  feature  of  the  jus  ad 
rem.  It  is  a  judgment  against  the  property;  a  judicial  finding 
that  it  is  an  indebted  thing,  and  a  virtual  condemnation  of  it 
to  pay  its  owner's  debt.  Whether  such  decree  in  rem  is  made 
by  the  insertion  of  the  clause  above  quoted  or  its  equivalent, 
or  is  made  by  implication  only  in  the  personal  judgment,  or  is 
rendered  formally  in  an  ancillary  proceeding  conducted  separ- 

»Vogel  &  Reynolds'  Case,  9  Ben.  »  Cannon  ■».    Diinlap,   64   Ga.  680; 

498.  Ga.  Code,  ^  3'J7G. 

2  Holland  &  PeUitt,  v.  Drake,  29  *  Herslilield  v.  Clatlin,  25  Kau.  IGG. 
Ohio  St.  441. 


FINAL    DECREE    WITH    PRIVILEGE.  507 

atcly  from  the  principal,  the  effect  is  the  saine.  Ini plication  is 
recognized  in  some  of  the  States  and  not  in  others;  but,  where 
it  is  recognized,  the  lien  is  perfected  as  well  as  if  the  privilege 
were  expressly  decreed  in  the  judgment. i 

The  implication  does  not  exist  if  the  attachment  has  been 
terminated  during  the  proceedings,  nor  if  thcie  is  anything  in 
the  iinal  decree  showing  that  the  recognition  of  privilege  on 
theproperty  is  not  designed.  ^ 

It  was  held,  however,  in  Missouri,  that  if  a  general  judgment 
is  rendered  after  attaching  and  ])ublishing,  it  is  not  void  as  to 
the  excess  above  the  value  of  the  res  but  is  valid  till  reversed; 
that  it  will  authorize  a  special  execution  against  the  property 
attached  and  will  bind  no  other  property  of  the  defendant;  and 
tluit  the  form  of  the  judgment  may  be  corrected  by  an  entry 
nunc  pro  tunc.^  There  should  be  a  recognition  of  the  jjri  vilcge; 
and  that  would  be  effected  if  special  execution  on  the  property 
attached  is  awarded  in  the  decree.* 

It  is  also  held  in  Missouri,  that  if  there  has  been  a  general 
appearance  of  the  defendant  in  the  case,  the  judgment  should 
be  general — not  special  against  the  property  attached.  ^  It  is 
held  there  that  under  such  judgment,  the  attached  property 
need  not  necessarily  be  sold;  that  if  there  is  other  property 
sufficient  to  satisfy  the  execution,  the  defendant  may  surrender 
it,  and  retain  the  attached  property  if  he  chooses  to  do  so.^  It 
is  true,  not  only  in  that  State  but  in  every  other,  that  if  the 
defendant  has  appeared,  the  personal  judgment  against  him  is 
a  general  one  which  may  be  executed  against  any  property  of 
his,  and  that  he  may  point  out  what  he  prefers  to  have  executed 
if  the  plaintiff  does  not  insist  upon  having  his  lien  vindicated 

1  Betancourt  ®.  Eberlin,  71  Alii.  78  Mo.  24;  Borura  «.  Reed,  73  Mo. 
4C)1,  4G7;  Coleman  «.  Waters,  13  W.  461;  Pliilips  ■«.  Stewart,  09  Mo.  149; 
Va.  278;  Young  v.  Campbell,  5  Gil-  Huxley  r.  Harrokl,  63  Id.  516;  Jones 
man.  80;  Waynant  ».  Dodson  et  al.  v.  Hart,  00  Id.  351.  See  Kenrick  «. 
12  Iowa,  22.  Hurt",  71  iMo.  570,  in  which  an  attach- 

2  Wasson  y.  Cone,  86  111.  46 ;  Love  ed  fund  was  lost  by  the  insolvency 
V.  Voorhies,  13  La.  Ann.  549.  of  the  officer  and  his  sureties. 

3  Massey  w.  Scott,  49  Mo.  278.  «  Kritzer  v.   Smith,    21   Mo.   296; 

*  .Johnson  v.  Holley,  27  ]\I>.  594.  Jones  v.  Hart,  60  Mo.  351. 

*  Maupin  v.  Va.  Lead   Mining  Co. 


508  JUDGMENT    SUSTAINING    ATTACHMENT. 

against  the  property  attaclicd.  The  satisfaction  of  the  jiulp:- 
jnent  in  any  way  would  relieve  the  attached  property  of  the 
lien.  But  it  is  not  true  that  an  attachment-judgment  bears 
upon  all  the  defendant's  pi-operty  alike,  because  of  his  personal 
appearance  in  the  case.  The  recognition  of  the  attaching  credi- 
tor's privilege  upon  the  property  attached  is  seen  to  be  all 
important  when  there  are  rival  attacliers,  and  several  judgments 
ao-ainst  the  defendant.  The  attach-r  who  holds  the  oldest  lien, 
nuitured  by  judgment,  has  priority  over  his  competitors  in 
executing  the  particular  property  on  which  his  lien  rests.  It  is 
as  important  a  privilege  to  him,  as  the  right  to  foreclose  a 
mortgage  on  hypothecated  property  is  to  the  mortgagee. 

Doubtless  the  personal  judgment  against  the  defendant  who 
has  appeared,  or  who  has  been  served  with  summons,  should  be 
general  in  Missouri  and  in  every  State,  so  as  to  be  operative  on 
any  property  of  his;  but  it  is  also  undoubtably  true  that  the 
hypothetical  lien  created  on  the  thing  attached  should  be  recog- 
nized, expressly  or  impliedly,  in  the  judgment,  and  thus  con- 
verted to  a  specific  lien  as  sacred  as  a  mortgage,  so  that  the 
judgment-creditor  can  make  his  money  out  of  the  execution 
and  sale  of  that  thing  to  the  exclusion  of  other  creditors. 
Should  such  lean-bearing  property  prove  insufficient  to  satisfy 
the  judgment,  other  property  may  be  executed  under  the  per- 
sonal judgment;  and,  when  that  becomes  necessary,  the  defend- 
ant may  point  out  property  to  the  sheriff  as  in  any  ordinary 
suit.  Or  the  judgment  creditor  may  voluntarily  abandon  his 
lien  and  make  his  money  out  of  any  property. 

Where  there  is  but  one  attachment  suit  against  the  defend- 
ant, and  judgment  has  been  rendered  against  him  after  service 
or  general  appearance,  it  would  work  no  wrong  to  the  plaintiff 
should  other  property  than  that  attached  be  pointed  out  and  the 
judgment  satisfied  out  of  the  proceeds  of  the  sale;  but,  until 
it  has  been  thus  satisfied,  the  lien  upon  the  attached  property 
remains  inviolate.  When  satisfied,  the  lien  disappears  just  as  a 
mortgage  or  any  specific  lien  whate.er  would  be  removed  by 
payment  of  the  debt  which  the  lien  existed  to  secure. 

Because  the  appearance  of  the  defendant  makes  him  amena- 
ble to  the  rendition  of  a  personal  judgment  against  him,  it  does 


FINAL    DECREE    WITH    TRIVILEGE.  509 

not  follow  that  tliorc  can  h^:  only  a  personal  jndginont.  If  the 
attaching  were  only  to  "  bring  him  into  conrt  by  his  property," 
to  "  compel  apjiearance,"  etc.,  and  were  without  any  other  sig- 
nificance, it  would  logically  follow  that  personal  appearance 
would  dissolve  it,  so  that  no  lien  could  be  matured  by  judg- 
ment; but  attaching  is  not  thus  confined  in  its  functions  now, 
as  it  is  understood  in  most  of  the  States. 

AYlien  the  decree  is  neither  expressly  nor  impliedly  confirma- 
tory of  the  attachment  lien,  it  can  have  no  reference  to,  or  bear- 
ing upon,  the  forthcoming  bond,  if  one  has  been  executed  by 
the  defendant;  and  the  money  due  by  such  judgment  cannot  be 
made  by  a  suit  on  that  bond.  For  the  duty  assumed  by  the 
obligors  is  to  restore  the  attached  property  should  the  attach- 
ment be  sustained  by  the  judgment.  Such  bond  does  not  dis- 
solve attachment,!  but  a  judgment  for  the  plaintiff  which 
denies  him  the  lien  does  dissolve  the  attachment  as  effectually 
as  if  the  judgment  were  for  the  defendant.  The  forthcoming 
bond  is  thus  cancelled  just  as  unbonded  attached  property  is 
thus  released.  2 

The  importance  of  the  judicial  recognition  of  the  privilege 
is  seen  from  the  fact  that  the  lien  can  only  be  perfected  by  the 
judgment,  which  has  relation  back  to  the  levy. ^  Before  matu- 
rity by  judgment,  the  attaching  creditor  cannot  assert  his  lien 
by  an  action  to  set  aside  an  alleged  fraudulent  conveyance  by 
the  defendant. 4  It  is,  from  the  moment  of  confirmation  by 
judgment,  fully  entitled  to  the  weight  of  a  perfect  lien  from 
tlie  date  of  its  creation  as  a  hypothetical  lien.     In  a  contest  for 


'Dunn  v.   Crocker,   22  Ind.   324;  23  Id.  43;  Perkins  v.  Bragg,  29  Id. 

GassiJ.  Williams,  46  Id.  253;  Jager  507. 

'0.  Stalling,  30  Id.   341;  Bell  -y.  AVest-  ^  Scarborough  «.    Malone,  67  Ala. 

nrn  etc.  Co.  3  Met.  (Ivy.)  559;  Hard-  570;  Teuuant  v.  Battey,  18  Kan.  324; 

ciistle  y.  Hickman,  26  Mo.  475; -lones  Coffin  «.   Ray,   1    JMet.  (Mass.)   212; 

■y.  Jones,  38  Id.  429;  Hagan  «.  Lucas,  McMechan  «.  Griffing,  3   Pick.  149; 

10  Pet.  400;  Kirk  «.  Morris,  40  Ala.  Tyrrell's  Heirs  v.   Rountree,   7  Pet. 

225;    Woolfolk    t.    Ingram,    53   Id.  464;     Goodwin    o.    Richardson,     11 

11.  Mass.  475;  Gushing  v.  Hurd,  4  Pick. 

2  State  t).  Manly,  15  Ind.  8;  Foster  253;  Van  Loan  v.   Kline,  10  Johns. 

'B.  Dryl'us,  16  Id.  158 ;  Moore 'P.  Jack-  129;  Penney  «.  Little,   3  Scam.  305. 

sou,  35  Id.  360;  McCollem  v.  White,  *  Tennant  v.  Battey,  18  Kan.  324. 


510  JUDGMENT    SUSTAINING    ATTACHMENT. 

priority,  with  otlier  jiorfcct  liens,  sncli  as  mortgages,  it  now  is 
entitled  to  as  much  consideration  as  if  it  had  been  convention- 
ally created. 

On  the  other  hand,  should  there  he  judgment  rendered 
ajxainst  the  defendant  without  recognition  of  the  lien  and 
privilege  upon  the  property  attached;  if  the  judgment  should 
be  such  as  to  give  the  plaintiff  no  exclusive  privilege  to  exe- 
cute the  attached  property  but  should  leave  such  property 
equally  subject  to  execution  by  any  other  judgment  creditor, 
the  lien  would  be  lost,  and  would  be  rendered  abortive  db  initio. 
But  in  determining  whether  a  judgment  recognizes  the  attach- 
ing-creditor's  privilege  on  the  property  attached  and  completes 
his  lien,  we  must  not  coiitine  ourselves  to  the  mere  verbiage  of 
the  decree  but  to  the  meaning  as  understood  in  connection  with 
the  general  practice  of  the  State  in  which  the  judgment  is 
rendered.  Though  purely  personal  in  form,  the  decree  may  be 
operative  against  property  in  vindication  of  the  .attachment 
lien:  as  previously  remarked,  the  judicial  recognition  of  the 
lien  may  be  understood.  It  is  not  deemed  necessary  to  the 
maintenance  of  tlie  lien,  in  several  of  the  States,  that  its  recog- 
nition should  be  written  in  tlie  decree. 

The  attachment  lien  finally  merges  into  the  judgment  lien 
which  succeeds  it;  but  if  the  judgment  is  personal  only,  with 
no  privilege  on  the  attached  property  judicially  recognized  and 
decreed,  and  none  implied  or  understood,  the  attachment  ]:»ro- 
ceedings  are  rendered  nugatory  from  the  beginning,  i  It  is  as 
important  that  the  lien  be  legally  maintained  by  the  proceed- 
ings subsequent  to  its  creation,  as  that  the  statute  requirements 
creating  it  should  be  observed  in  the  first  place.^ 


1  Smith  v.  Scott,  86  Ind.  346;  tached  and  a  special  execution.  2  R. 
Lowry  v.  McGee,  75  Ind.  508.  Held  S.  1876,  p.  Ill  g  188;  The  State  ex  rel. 
therein  that  no  lien  created  by  the  «.  Manly,  15  Ind.  8;  Foster  v.  Dry- 
issuing  of  an  attachment,  under  the  fus,  16  Ind.  158;  McCollem  ».  White, 
statute  of  Indiana  on  the  subject,  can  23  Ind.  43;  Perkins  v.  Bragg,  29  lad. 
exist  or  have  any  force  after  judg-  507;  Moore  ?;.  Jackson,  35  Ind.  360; 
ment  has  been  rendered  in  a  cau.'^e  Gass  v.  Williams,  46  Ind.  253;  Lowry 
in  aid  of  which  it  has  been  issued,  v.  Howard,  35  Ind.  170;  Willets  v. 
"unless  there  is  a  special  judgment  Ridgeway,  9  Ind.  367." 
or  order  of  sale  of  the   property   at-  ^  The   State,   ex  rel.   v.    JMiller,  63 


FINAL    DECREE    WITH    PRIVILEGE.  511 

"When,  however,  there  has  been  judgment  rendered  formally 
against  the  defendant,  with  privilege  upon  the  property  attached, 
the  issuing  of  a  general  execution  instead  of  an  order  for  the 
sale  of  the  attached  property,  is  not  a  waiver  of  the  attachment 
lien  nor  of  the  priority  acquired  by  attaching. ^  There  would 
be  a  waiver,  however,  should  property  that  had  not  been  prim- 
arily attached,  (hut  levied  upon  under  the  execution  for  the  first 
time,)  be  seized  and  sold  to  the  satisfaction  of  the  judgment. 
Like  any  other  lien, — like  a  mortgage,  pledge  or  pawn, — it 
would  die  with  the  debt  which  had  called  it  into  existence. 

There  is  nothing  sacramental  in  the  form  of  the  judgment 
recognizing  the  privilege  upon  attached  property.  Total  omis- 
sion of  any  mention  of  such  privilege  is  not  necessarily  a  defeat 
of  the  lien  and  a  dissolution  of  the  attachment.  As  above 
mentioned,  it  is  not  deemed  essential  to  the  maintenance  of  the 
lien,  in  several  of  the  States,  that  it  be  formally  recognized. ^ 
The  omission  of  formal  recognition,  in  States  where  the  law 
does  render  express  judgment  against  property  essential  to  the 
maintenance  of  the  lien;  or  the  express  denial  of  privilege  in 
the  judgment,  in  the  other  States,  would  be  fatal  to  the  attach- 
ment, and  equivalent  to  its  judicial  dissolution. 

As  it  was  remarked  early  in  this  treatise,  the  attachment  suit 
is  alioays  personal  in  form.  The  judgment,  though  always  per- 
sonal in  form,  may  be  in  eifect  against  a  thing.  The  eifect  may 
be  such,  whether  the  decree  is,  in  form,  simply  against  the 
defendant  personally,  or  against  him  personally  with  privilege 
upon  the  property  attached.  The  practice  is  not  uniform  as  to 
the  express  recognition  of  the  privilege  in  the  decree,  but  it  is 
.so  as  to  the  intendment  of  the  personal  decree  to  be  of  effect 
against  property,  when  such  intendment  appears. 

When  the  final  judgment  is  not  meant  to  have  any  bearing 
on  the  attached  property  but  to  be  entirely  personal,  it  ought 

Ind.  475;  Tlie  Excelsior  etc.  Co.  v.  aud  the  attached  property  executed, 

Liikens,  38  Ind.  438;  Lowry  v.  Mc-  sureties  canuot  complain  that  there 

Gee,  75  Ind.  508.  was  no  special,   express  judgment 

'  Leibman  v.  Ashbacker,  36   Ohio  against  the  property.     Thole  v.  Wat- 

St.  94.  sou,  0  Mo.  App.  591. 

2  If  the  attachment    is    sustained 


512  JUDGMENT    SUSTAINING    ATTACIIMENT.x 

not  to  he  silent  on  the  snl)ject  of  the  attaclnnont:  there  should 
be  an  order  of  restoration  included,  if  the  property  has  not 
already  been  restored  to  tlie  defendant  upon  dissolution  of  the 
attachment  during  the  course  of  the  proceedings.^  If,  during 
the  progress  of  the  proceedings,  the  res  has  been  judicially 
awarded  to  an  intervenor,  the  attachment  suit  against  the  defend- 
ant is  ended,  and  only  the  personal  one  can  be  further  prose- 
cuted; and  the  whole  case  ag-ainst  him  is  terminated,  if  he  has 
not  been  served  with  summons  and  has  not  appeared. ^  If  the 
final  judgment  is  for  the  defendant,  there  is  no  need  of  an  order 
quashing  the  attachment. ^ 

•  A  personal  judgment  exceeding  in  amount  the  value  of 
attached  property  appraised  and  bonded,  cannot  be  recovered  in 
full  against  the  surety  whose  obligation  is  limited  to  the  ap- 
praisement. It  was  held  in  Arkansas,  (under  the  proviso  of  her 
attachment  statute,  that  "no  greater  amount  shall  be  recovered 
of  the  securities  than  the  appraised  value  of  the  property  seized 
by  the  officer,")  that  the  court,  on  a  verdict  for  a  greater  amount, 
should  render  judgment  against  the  principal  and  sureties  for 
the  appi-aised  value,  and  against  the  principal  alone  for  the  bal- 
ance.^ It  had  been  held  erroneous  to  include  the  surety  with 
the  defendant  in  the  attachment  judgment.  ^ 

The  defendant  can  appeal  only  when  judgment  has  been 
rendered  against  him  on  the  merits;  but  the  plaintiff  may,  when 
a  plea  in  abatement  has  been  decided  adversely  to  him,  in  the 
attachment  proceeding,  though  the  judgment  on  the  merits  of 
the  personal  suit  be  in  his  favor. ^  Were  this  right  denied  the 
plaintiff,  he  would,  in  such  case,  be  denied  the  benefit  of  his 
attachment  lien  thongh  the  judgment  in  the  ancillary  suit 
might  be  reversible;  and  he  would  have  nothing  but  an  ordi- 
nary personal  judgment. 

In  Iowa,  the  judgment  must  be  formally  in  rem  when  there 
has  been  publication  but  neither  service  nor  ap].)earance.  Though 

•  Jackmati   «.   Anderson,  33  Ark.  <  Holmes  ■».  Cooper,  27  Ark.  239. 

414.  6  Mizell  ».  McDonald,   25  Ark.  38. 

2  Ireland  v.  Webber,  27  Ind.  256;  «  Knapp  «.  Jay,  9  Mo.  App.  47; 
JaftYay  v.  Purtell,  66  Ga.  226.  Rancher  v.  McEllunncy,  11  Mo.  App. 

3  Higgins  «.  Grace,  59  Md.  365.  434. 


FINAL    DECllEE    AGAINST    THE    GAliNISIlEE.  513 

all  the  prior  procccdinu^s  may  have  been  in  conformity  to  stat- 
ute, and  the  property  attached  is  the  same  as  that  sohl  under 
the  judgment,  yet  it"  the  decree,  following  the  pleadings,  is 
personal  in  form,  it  may  be  collaterally  attacked. ^  Though  all 
the  previous  proceedings  in  any -case  may  be  such  as  to  enable 
the  court  to  render  a  formal  judgment  against  the  attached  prop- 
erty, yet  if  the  decree  is  nominally  against  the  defendant  it  is 
deemed  absolutely  void  in  that  State,  and  a  purchaser  at  the 
sale  is  liable  to  ejectment  at  the  suit  of  the  attachment  debtor. 
In  Indiana  it  is  held  necessary  that  the  attachment  lien  be 
recognized  in  the  judgment;  that  this  is  as  important  as  the 
observance  of  the  statutory  requisites  for  the  creation  of  the 
liens;  there  must  be  a  special  judgment  and  sj)ecial  execution 
to  enforce  the  lien.  2  There  are  other  States  than  those  specified 
which  hold  the  same  doctrine;  but  the  general  practice  in  others 
is  to  treat  the  judgment  as  following  the  previous  proceedings, 
which,  being  formally  against  a  personal  defendaTit,  (though 
really  against  his  property  when  he  has  not  appeared  nor  been 
served,  but  has  only  been  notified  by  publication,)  may  be  con- 
summated by  a  judgment  personal  in  form. 

Sec.  15.    Final  Decree  against  the  Garnishee. 

Final  judgment  mnst  be  rendered  against  the  defendant  in  an 
attachment  suit,  before  the  garnishee  can  be  ordered  to  pay  into 

*  Smith  0.  Griffin,  59  Iowa,  409,  in  like  import:  Wilkie  «.   Jones,   Mor- 

exix)sition    of  §   2881   of  tlie  code,  ris,   97;    Doolittle  v.    Sbelton,  1   G. 

providing  that   in   a  proceeding   by  Greene,   272;  Johnson  'o.   Dodge,  19 

attachment,  when  the  defendant  has  la.  107;  Hakes  ».  Bhupe,  27  la.  465; 

not  been   served  with   process,    tlie  Lutz  «.  Kelley,  47  la.  o07. 

judgment  should  be  m  ?'cm  only  and  ^  Lowry   v.   ]\IcGee,  75  Ind.   510; 

not  in  pe?-so nam.     GrilRn   had  sued  State  v.  Miller,  G;]  Ind.  475;  Gass  ■«. 

Smith,   attached  land,  notified   him  Williams,  4G  Ind.   253;   The  E.xcel- 

by  publication,   obtained  judgment,  sior  &c.  Co.  v.  Lukens,  38   Ind.  438; 

and   had   become   the   purchaser  at  Lowryu.  Howard,  35  Ind.  170;  Moore 

sale.  Smith  sued  to  recover  the  prop-  v.  Jackson,  Id.  3G0 ;  Perkins  v.  Bragg, 

erty  and  the  court  held  the  judgment  29  Id.  507;  McCollem  v.   White,  23 

absolutely  void  because  of  its  form,  Ind.  43;  P"'oster    v.    Dryfus,    15  Ind, 

adding:  "the  court  might  have  ren-  158;  State   v.    Manly,    IG     Ind.     8; 

dered  a  judgment  in  rem  but  did  not  Wlllets  v.  Ridgway,  9  Ind.  3G7. 
do  so."     Previous    decisions  are  of 

33 


51'i  JUDGMENT    SUSTAINING    ATTACHMENT. 

court  or  deliver  property  for  execution,  i  Such  judginent  mnst 
have  been  signed  and  made  of  record  before  the  auxiliary  one 
can  be  rendered.  Sufficient  reason  for  judgment  is  the  garni- 
shee's admission  direct  or  indirect,  that  he  owes  the  defendant 
unconditionally,  or  that  he  holds  property  of  the  defendant 
liable  to  execution;  or  the  garnishee's  fraudulent  evasion  of 
interrogatories;  or  the  proof  aliunde  of  the  fact  of  unconditional 
indebtedness  to  defendant  or  of  possession  of  property  liable  to 
execution  upon  the  plantiif 's  judgment. 

Reasons  for  an  order  discharo-ino-  the  garnishee  are  his  untra- 
versed  denial  of  indebtedness  to  defendant  or  possession  of 
defendant's  property,  his  candid  statement  of  facts  of  such  a 
character  as  to  show  no  legal  liability,  his  right  to  the  benefit 
of  a  doubt,  and  the  failure  of  the  plaintiif  to  get  judgment 
aorainst  the  defendant. 

o 

The  amount  of  the  judgment  against  the  garnishee  cannot 
exceed  the  debt  he  owes  or  the  value  of  the  property  he  holds 
subject  to  execution  for  the  defendant's  debt.  So  far  as  con- 
cerns the  property,  its  delivery  to  the  sheriff  when  demanded 
is  all  that  is  required,  so  that  there  is  no  judgment  for  its 
A^alue  unless  it  should  fail  to  be  forthcoming  when  wanted.  If 
he  is  in  possession  of  more  of  defendant's  pro^Dcrty  than  is 
sufiicient  to  satisfy  the  judgment,  or  owes  him  more,  the  surplus 
remains  unaffected. 

If  the  judgment   against  the  defendant  is  greater  in  amount 

1  Withers  V.  Fuller,  30   Gratt.  547;  «.  Friend,   21    La.  Ann.   7;  Rose  v. 

Randolph  v.  Little,  62  Ala.  376;  Lee  AVhaley,  14  Id.  374;  Pro-eus  «.    Ma- 

^.  Ryall,  68  Ala.  3.)4;  Case  b.  Moore,  son,  12   La.  16;  Caldwell  -y.    Town- 

21  Id.   758;  Bostwick   -y    Beach,   18  send,  5  Martin,  N.  S.  307;  Clough  ». 

Id.  80;  LowryB.  Clements,  9  Id.  422;  Buck,    6  Neb.    343;    Washburue   v. 

Lei.n;h  v.  Smith,  5  Id.  583;  Gaines  v.  New  York  &c.   Co.  41  Vt.  50;  Row- 

Bierne,  3  Id.  114;  Toledo  R.  R.  Co.  lett  r..  Lane,  43  Tex.  274;  Bushnell  v. 

'6.  Reynolds,   72    111.   487;  Hinds  «.  Allen,  48  Wis.  460;  Moore  v.  Allen, 

Miller,   52    Miss.   485;    Iloflman  v.  55  Ga.  61;  Bryan   v.   Dean,  63  Ga. 

Simon,   52  Miss.  302;    Murdock    ■».  317;  Housemans  ■».  Heilbrou,  23  Id. 

Daniel,    58    Miss.    411;    Roberts  -d.  186:  Emanuel    «.  Smith.  38  Id.  602; 

Barry,  46  Id.  260;  Metcalf  t).  Steele,  Railroad  t-.    Tiuld,    11    lleisk.    549; 

Iu.511;  Kellogg  y.  Freeman,  50   Id.  Laugford  t-.  Ottnmwa  Water  Power 

127;  Lruin  b.  Heath,  Id.  705;  Lin-  Co.  53  Iowa,  415;  Whorley  -y.  M.  «& 

gardt  V.  Deitz,  30  Ark.   224;  Collins  C.  R.  Co.  72  Ala.  20. 


FINAL    DKOKEE    AGAINST    THE    GAKNISIIEE.  OiO 

than  the  sum  sjiecified  in  the  writ  of  ganiislnnent,  the  jndi:;- 
ment  ac^ainst  the  <?arnishee  must  be  in  accordance  with  the  writ 
if  the  evidence  will  snpport  it  to  tliat  amount;  it  cannot  be 
made  to  exceed  the  sum  stated  in  the  writ.i  A  stipulation, 
that  if  the  court  should  find  for  the  plaintiff,  the  judgment  shall 
be  for  a  stated  sum,  is  no  basis  for  determining  the  garnishee's 
indebtedness.  2 

There  is  no  breach  of  the  condition  to  pay  in  case  of  con- 
demnation, alter  bonding,  so  far  as  the  debt  or  property  sub- 
jected to  garnishment  shall  be  found  liable,  nntil  there  has  been 
judgment  rendered  in  favor  of  the  plaintiff,  on  the  garnishment, 
finding  the  amount. ^ 

A  garnishee  cannot  object  to  irregularities  in  proceedings 
against  the  defezidant,  unless  such  as  would  make  the  judgment 
void.*  Noj'  can  he  complain  that  the  decree  was  without  pro- 
cess, if  the  defendant  has  confessed  service.  ^  Nor  c;m  he  have 
a  judgment  against  himself  set  aside,  on  the  ground  that  the 
evidence  was  insufiicient,  upon  motion  made  after  the  term.^ 
His  remedy  is  by  appeal  or  writ  of  error,  according  to  the  prac- 
tice in  his  State.  The  garnishee  should  appeal  from  a  judg- 
ment against  him  as  acceptor  of  a  draft  or  order,  rendered  in 
an  attachment  suit  against  the  drau'er,  since  he  will  remain 
liable  to  the  holder  of  the  draft. ' 

It  has  been  held  that  a  garnishee  is  not  bound,  in  the  absence 
of  the  defendant,  to  make  objection  to  amendable  defects 
appearing  of  record.  ^  He  shonld,  however,  claim  for  such 
absentee,  the  benefit  of  exemption,  when  property  or  a  credit 
exempt  by  law  has  been  attached  or  subjected  to  garnishment.  ^ 

'Hoffman  v.  Simon,   52  Miss.  303.  '  Sadler  v.  Prairie  Lodge,  59  Miss. 

This  was  garnisliment  in  execution,  572. 

wliicli  is  held  to  be  original   process  ^  Fort  v.  Stroheel^er,  58  Ga.  2G2. 

in  Mississippi;  but  the   principle  is  ^Montague  «.    Myers,   11    Heisk. 

general  that  the  garnishee  cannot  l)e  539. 

held  beyond    the  amount  claimed  of  ^  Bushnell   &   Clark  v.   Allen,   4S 

him,  notwithstanding  the  greater  de-  Wis.  400.     See   Johann   v.    Rufener, 

mand  against  the  defendant.  32  Wis.  195;  Pierce   ».  Railway  Co. 

2  Cairo   &   St.   Louis  K.   R.  Co.  v.  3G  Wis.  288. 

Killenburg,  92  111.  142.  9  Chicago    &   Alton  R.    R.    Co.   v 

3  Moore  v.  Allen,  55  Ga.  67.  Ragland,  84  111.  375. 
*  Ueuson  v.  Hollaway,  o'J  ;Miss.  3.")8. 


51G  JUDGMENT    SUSTAINING    ATTACHMENT. 

In  several  of  the  States,  debt  either  due  to  the  defendant  or 
1)econiiiig  due,  may  be  tlie  subject  of  garnishment, ^  and  wliej-e 
thus  liable,  the  garnishee  should  disclose  the  fact  that  the  debt 
is  undue,  if  such  is  the  case,  but  he  is  not  bound  to  except  to  the 
suit  for  the  protection  of  the  absent  defendant.  Unliquidated 
damages  are  not  garnishable;^  and  should  one  who  has  been 
sued  for  them  be  interrogated  as  garnishee,  he  might  truly 
answer  that  he  owes  nothing;  and  that  would  acquit  him  of  his 
duty  to  the  absent  attachment-defendant.  lie  ought  not  have 
judgment  entered  against  him  as  garnishee,  in  any  case,  nidess 
he  clearly  was  indebted  to  the  defendant  at  the  time  he  was 
garnished. 3  He  cannot  be  put  in  a  worse  position  than  if  sued 
by  his  own,  immediate  creditor. ^ 

Garnisheed  funds  or  debts  should  not  be  ordered  to  be  paid 
into  court  prior  to  judgment  against  the  defendant;  and  cer- 
tainly not  before,  in  any  case,  unless  the  attaching  creditor  has 
previously  secured  the  garnishee  by  a  l:)ond.  Such  payment,  if 
made  jirematurely,  without  bond,  should  be  annnlled,  and  the 
funds  repaid  to  the  garnishee,-in  case  the  creditor  should  fail  in 
his  suit  against  the  defendant. ^  A  dilFerent  rule  would  sub- 
ject the  garnishee  to  double  payment,  since  the  defendant  could 
re(3over  of  him  after  having  gained  the  principal  suit. 

Even  after  final  judgment  against  the  defendant,  the  garn- 
ishee should  not  be  subjected  to  a  general  order  to  pay  the  judg- 
ment and  all  the  costs  of  the  proceeding,  though  his  answer 
may  have  shown  that  he  has  sufficient  funds  in  his  hands  for 
the  purpose;  for  he  is  entitled  to  have  the  specific  sum,  for 
which  lie  is  held,  named  in  the  order,  so  that  he  may  readily 
show  what  amount  of  credit  he  will  have  in  his  account  with 
the  defendant.  Such  general  judgment,  however,  may  be  made 
s]>ecific  upon  motion,^      A  judgment,    in  such    round  terms, 

1  Wilcus  V.  Kling,  87  111.  107.  and  Trustee,  133  Mass.  427. 

-  Gove  V.  Varrell,  58  N.  H.  78.  ^  So  held  in  Mississippi  -vvliere  the 

3  Cairo  &  St.  Louis   R.  R.    Co.  v.  creditor  is  required   to  give  bond  to 

Hin(lmau,85  111.521.  the  garnishee  to  secure  payment  be- 

*  Carlos    V.    Alvord,   45     Ct.    5G9;  fore  judgment.     Murdock  ».  Daniel, 

Doyle  V.  Gray,  110  Mass.  20G;  Nutter  58  Miss.  411. 

V.  J'ramingham    &  Lowell  K.  R.  Co.  "  Randolph  v.  Little,  G2  Ala.  o96. 


FINAL    DECEEE    AGAINST    THE    GAKNISIIEE.  517 

could  not  Le  deemed  informal  nor  vicious.  It  could  hardly  ever 
be  accurute  jis  to  costs  at  that  stage. 

If  the  original  attachment  served  upon  the  garnishee  is  void, 
the  judgment  against  him  thereunder  is  so,  notwithstanding 
judgment  obtained  against  the  principal  defendant.*  On  the 
other  hand,  if  the  defendant  has  not  been  notified  of  the  attach- 
ment, either  actually  by  service,  or  constructively  by  publica- 
tion, any  judgment  agaiiist  a  garnisliee  in  such  attachment  case 
would  be  void. 2  In  all  cases,  if  the  judgment  against  the 
principal  defendant  is  null,  that  against  the  garnishee  is  so;^ 
but  it  has  been  held  that  though  the  former  may  have  assigned 
the  debt  due  him  by  the  garnishee,  the  latter,  if  he  has  paid 
under  a  judgment,  should  be  protected  from  a  suit  subsequently 
brought  against  him  by  the  assignee;  and  that,  too,  even  if  he 
had  had  notice  of  the  assignment  after  he  was  summoned  and 
before  the  judgment.*  If  the  judgment  against  the  principal 
defendant  is  reversed  on  appeal,  that  against  the  garnishee  falls 
with  it;  it  becomes  an  absolute  nullity. ^  Such  would  be  the 
result,  though  the  minor  judgment  be  not  mentioned  in  the 
decree  of  the  appellate  court,  and  though  the  garnishee  be  not 
before  that  tribunal  either  as  appellant  or  appellee. 

Proper  names,  as  well  as  common,  are  only  signs  of  ideas; 
and  when  there  is  certainty  as  to  the  person  meant,  an  error  in 
designating  him  by  the  sign  which  he  has  adopted  or  which 
was  bestowed  upon  him  by  his  parents,  is  not  fatal,  in  attach- 
ment pleadings.  A  garnisliee  who  has  responded  to  a  sum- 
mons directed  to  him,  though  his  right  name  was  not  in  the 
direction,  cannot,  after  judgment  has  been  rendered  against 
him  in  his  right  name,  enjoin  the  execution  on  the  ground 
of  misnomer  in  the  summons.^  lie  might  have  moved  to  set 
aside  the  service  of  summons,  before  answering  or  submitting 
to  a  rule  to  answer.'      Nor  can    the    garnishee   shield   himself 

»  Greene  v.  Tripp,  11  K.  I.  431.  s  ciongh  v.  Buck,  6  Neb.  343. 

2Kailroadc.  Todd,  11  Ileisk.  549.  «  Williams  v.  Hitzie,   83   lud.  303. 

«  iMaUieney   v.    Earl,   75   lud.  531,  '  Bait.  &  O.  R.  R.  Co.  v.  Taylor,  81 

and  cases  therein  cited.  Ind.  24;  Whitney  v.  Lehmer,  20  lud. 

*  Newman    v.    Mauuiug,    79   Ind.  503;  Gould  «.  Meyer,  36  Ala.   505. 
218. 


518  JUDGMENT    SUSTAINING    ATTACHMENT. 

beliind  a  mistal<e  in  tlie  defendant's  name,  and  pay  over  -what 
he  owes  to  liini  after  having  been  summoned  as  garnishee. 
Even  if  the  error  existed  at  the  time  the  snmmoned  garnishee 
paid  to  the  defendant,  and  its  correction  took  phice  afterwards 
and  no  notice  of  the  change  from  the  wrong  appellation  to  the 
right  w'as  given  to  the  garnishee,  still  he  would  be  responsible 
to  the  attaching  creditor  if  the  latter  should  show  that  the 
defendant  M^as  as  well  known  by  the  one  name  as  the  other  and 
that  the  garnishee  knew  who  was  meant  by  the  designation 
enip!o3^ed.i 

The  garnishee  has  no  right  to  object  to  the  amendment  of 
the  plaintiff's  affidavit  and  bond,  so  at  to  correct  misnomers 
and  like  mistakes,  if  the  defendant  is  in  court.  2  When  an 
attachment  snit  is  brought  by  a  firm,  the  .partnership  desig- 
nation should  be  followed  by  a  disclosure  of  the  members' 
names.  The  omission  of  them  is  an  error  that  may  be  amended.  ^ 

Errors  and  irregularities  in  the  proceedings  of  an  attach- 
ment suit,  in  which  the  court  has  jurisdiction,  cannot  be  suc- 
cessfully set  up  by  the  garnishee  to  avoid  a  judgment  against 
himself.'*  If  the  proceedings  are  not  void  but  voidable,  the 
defendant  may  reverse  them  upon  appeal  or  writ  of  error  as  in 
other  cases,  but  the  garnishee  is  uninjured  if  he  is  made  to  pay 
to  the  attaching  creditor,  and  the  defendant  acquiesces,  however 
irregular  such  jurisdictional  proceedings  may  ])e.  The  garni- 
shee cannot  assign  as  error  mere  irregularities  in  the  judgment 
against  the  principal  defendant,  but  he  may  assign  whatever 
would  make  such  judgment  void.^  He  may  have  a  judgment 
set  aside  as  void,  if  entered  against  himself  by  the  clerk  with- 
out authority.  6 

A  verdict  and  judgment  against  him,  for  a  specific  sum,  in 
an  attachment  in  execution,  are  erroneous.'' 

Should  there  be  a  joint  judgment  rendered  against  the  defend- 
ant and  the  garnishee,  the  latter  may  have  execution  set  aside, 

1  Bait.  &  O.  K.  R.  Co.  ■».  Taylor,  81  »  Eiwin  v.  Heath,  50  Miss.  795. 
Ind.  24.  ^Lee   v.  Carrollton     Savings   and 

2  Id.  Loan   Association,  58  Md  oOl. 

3 Barber?;.  Smith,  41  Mich.  138.  ^  Bonuaffon  v.   Thompson,   83  Pa. 

*  Earl  V.  Matheney,  GO  fnd.  202.  St.  4U0. 


FINAL    DECREK    AGAINST    THE    GARNISHEE.  519 

as  to  himself,  "by  means  of  certiorari.  He  cannot  be  lawfully 
made  a  general  defendant  so  as  to  have  his  own  property  sub- 
jected to  execution  for  another's  debt.^  The  execution  against 
him,  when  a  judgment  is  not  joint,  ought  to  show  that  it  is 
limited  to  the  sum  which  he  has  been  ordered  to  pay  into  court. 
Should  the  officer  executing  the  writ,  collect  more,  he  ought  to 
return  the  surplus  to  the  garnishee. ^  To  condemn  the  debtor's 
debtor  as  though  there  were  solidarity  of  indebtedness  to  the 
attaching  creditor,  is  wholly  unjust  and  unwarrantable. 

Indeed,  the  judgment  against  the  garnishee  is  rather  in  favor 
of  the  principal  defendant  than  against  him.  It  is  really  a 
judgment  in  favor  of  the  defendant  in  the  attachment  suit,  for 
the  use  of  the  plaintiff  therein. ^ 

AVhen  judgment  has  been  rendered  against  a  garnishee  pre- 
maturely, before  any  has  been  decreed  against  the  defendant,  it 
should  be  set  aside  upon  proper  application.'*  It  may  be  set 
aside  on  other  grounds,  or  its  execution  enjoined.  If  the  garn- 
ishee shows  that,  without  laches  on  his  part,  he  was  prevented 
from  a  timely  appearance,  and  that  he  could  have  set  up  a  good 
defense,  and  that  the  collection  of  the  amount  he  has  been 
ordered  to  pay  would  work  him  injury  and  injustice,  the  court 
may  give  him  relief.  Especially  if  he  can  show  that  he  was 
prevented  from  making  a  timely  defense  by  the  fraud  of  the 
plaintiff,  will  he  be  entitled  to  have  the  order  set  aside.  Una- 
voidable accident  too,  may,  in  the  discretion  of  the  court,  be 
deemed  sufficient  ground  for  vacating  the  order,  and  allowiii"- 
the  garnishee  to  make  answer  or  set  up  defense. ^  He  was 
denied  relief,  however,  in  one  instance,  after  having  sworn  to 
answers  written  out  for  him,  at  his  request,  (by  the  clerk,  who 
left  out  part  of  what  he  had  been  directed  to  write,)  thouo-h  he 

'  Masters  ».  Turner,  10  Pliila.  483.  creditor,  remains  for  the  benefit  of 

^  lb.  the  attaclmient-debtor.      Webster  v. 

*  In    Illinois,  the  judgment  is   in  Steele,  75    111.     544;  Chic.   &  l?ock 

favor  of  the  defendant  for  the  use  of  Is.   R.  R.  Co.  «.  Mason,  11   111.  App. 

the  plaintiiT,  when  rendered  ag:iinst  525. 

a  garnishee  in  an   attachment   suit;  *  Bryan  t).  Dean,  6P>  Ga.  317. 

and   any    balance    beyond    what  is  ^  Freeman  v.  Miller,  53   Tex.  o72. 

necessary  to    satisfy   the    attaching 


520  JUDGMENT    SUSTAINING    ATTACHMENT. 

supposed  the  answer  complete  when    lie    signed    it  and  swore 
to  it.i 

Sec.  16.    Garnishee  Protected  by  Judgment. 

The  garnishee  may  plead  payment  under  judicial  order, 
against  any  subsequent  suit  against  him  by  his  former  creditor, 
in  bar  of  the  action.  He  may  plead  garnishment  in  abatement, 
when  he  has  been  served  but  has  not  yet  paid — the  attachment 
proceedings  being  still  pending,  or  his  judicial  requirement  to 
pay  into  court  being  still  uncertain.  Such  plea  in  abatement 
should  not  operate  the  discontinuance  of  the  suit,  but  either  a 
delay  of  the  trial  or  a  suspension  of  the  judgment.  The  debt 
exists,  payable  to  somebody;  and  it  is  immaterial  to  the  debtor- 
garnishee  to  whom  he  pays,  provided  he  gets  acquittance.  If 
afterwards  sued  by  his  own,  immediate  creditor,  (or  him  who 
was  such  before  the  subrogation  by  the  attachment  and  garnish- 
ment judgments,)  he  may  successfully  plead  that  he  has  had 
judgment  against  him  as  garnishee,  and  paid  the  same  indebt- 
edness thereunder.  If  served  with  process  of  garnishment, 
then  sued  by  the  attachment-defendant,  and  judgment  be  rendered 
against  him,  then  condemned  in  the  garnishment  proceeding,  if 
lie  pay  into  court  as  garnishee  he  must  look  to  an  equity  court 
for  relief  from  the  judgment  obtained  against  him  by  the 
attachment-defendant. 2  If  he  has  paid  part  of  his  acknowl- 
edged indebtedness  under  an  order  against  him  as  garnishee, 
and  has  tendered  the  balance  to  an  otilcer  executing  a  judgment 
of  the  defendant  against  him,  the  court  will  have  the  writ 
recalled  and  the  credit  allowed. ^ 

The  garnishee  may  defend  against  a  suit  by  his  former  creditor 
and  set  up  that  he  has  already  paid  under  an  order  of  court  in 
attachment  proceedings, ^  because  judgment  against  the  defend- 
ant in  attachment  must  necessarily  have  preceded  that  against 
the    garnishee,  and  the    effect  of  such    judgment  against  the 

>  Lawton  v.  Branch,  62  Ga.  350.  slmr:  Carroll  v.  Parkes,  57Tenn.  260. 

2Allen'».   Watt,    79   111.  284.      In  ^  Sandburg  «.  Papineau,  81  111.  446. 

Tennessee,  he   has  an   action  at  law  See   Collins    t.  Jennings,   42   Iowa, 

to  protect  himself  against  an  errone-  447. 

oils  judgment   in  favor  of  the  garni-  *  Cauaclay  v.  Detrick,  G3  Ind.  485. 


GAKXISIIEE    PliOTECTED    BY    JUDGMENT.  521 

attach inent-defciidant  was  to  transfer  the  debt  of  the  garnisliee 
from  that  defendant  to  the  attaching  creditor  by  operation  of 
law.i  But,  while  the  garnisliee  may  plead  judgment,  it  has 
been  held  that  he  cannot  plead  in  bar  the  pendency  of  garnish- 
ment proceedings  against  him, -in  defense  of  a  suit  brought  by 
liis  immediate  creditor — the  defendant  in  the  attachment  suit.^ 
The  reason  why  judgment  against  him  may  be  pleaded,  and 
Avhy  it  will  protect  him,  is  that  garnishment  operates  as  an 
assignment  to  the  attaching  creditor. 3  As  the  discharge  of  the 
garnishee  does  not  thus  operate,  and  as  it  is  no  adjudication  of 
non-indebtedness  to  the  defendant  that  will  preclude  the  latter, 
it  cannot  be  pleaded,  either  in  abatement  or  in  bar,  to  a  subse- 
Cjuent  suit  brought  by  the  attachment-defendant;* 

When  garnishment  has  been  dissolved,  and  the  plaintiff  has 
appealed,  and  the  defendant  has  sued  the  garnishee  for  what  was 
attached  in  the  hitter's  hands,  the  court  will  not  order  a  stay  of 
proceedings  in  such  suit,  to  await  the  result  of  the  appeal  in  the 
attachment  suit;  for  should  there  be  judgment,  the  garnishee's 
payment  thereon  would  protect  him  from  the  garnishment 
though  the  previous  decree  dissolving  it  should  afterwards  be 
reversed.  5  A  garnishee,  however,  is  not  finally  discharged  by 
the  dissolution  of  the  garnishment,  if  the  plaintiff  appeal,  but 
must  await  the  ultimate  result  of  the  litigation. ^  Payment 
to  the  defendant  after  appeal  is  void  as  to  the  plaintiff.'' 

It  has  been  held  that  one  sued  in  a  State  court  cannot  plead 
in  defense  his  own  garnishment  in  a  federal  court. 8  If,  how- 
ever,  there  has  been  final  iudgment  ao-ainst  him  in  the  g'arnish- 
ment  proceeding,  and  he  has  had  acquittance  by  payment,  he 
should  be  allowed  to  plead  it  anywhere. 

1  Kellagg  V.  Freeman,  50  Miss.  157.      attaching  creditor's  claim  and  costs, 

2  Shealy  v.  Toole,  56  Ga.  210.  in   case  there   should  be   judgment 

*  Campbell  v.  Nesbitt,  7  Neb.  300.      against  the  defendant.     There  was 

*  Ruff  V.  Ruff,  85  Pa.  St.  3o3.  judgment   for  the    defendant,  fron>. 
6  Montgomery    Gas   Light   Co.  v.      which  the  plaintiff  appealed.    Itwa.s 

Merrick,  61  Ala.  534.  held   that  the  garnishee  was  not  dis- 

*  Having  admitted  the  possession  of  charged  but  that  he  could  not  be  made 
notes  belonging  to  the  defendant  to  to   pay  till    the   conversi(m   of   the 
the   amount  of  $2000,  the  garnishee  assets.    Delby  v.  Tingley,  9  Neb.  413. 
was   ordered   to   retain   |475   of  liis  '  Puff  v.  Hutcher,  78  Ky.  146. 
future  collections  thereon  to  meet  the  *  McRee  v.  Brown,  45  Tex.  503. 


522  JUDGMENT    SUSTAINING    ATTACiniENT. 

An  order  of  court  tkat  the  garnisliee  pay  into  court  the  sum 
attached  in  his  hands,  cannot  be  coHaterally  attacked,  ^  if  the 
court  have  jurisdiction  so  to  order,  provided  tliere  has  been  no 
appeal  and  the  judgment  is  linaL  But  if  the  judgment  is  void 
for  want  of  jurisdiction,  tlie  garnishee  who  had  paid  under  order 
of  court  may  be  adjudged  to  paj^  figiin  in  a  suit  by  his  credtor.* 
Obviously,  the  decree  may  be  attacked  for  fraud,  collusion  or 
want  of  jnrisdicti(jn,  but  not  for  mere  irregularities  in  the 
exercise  of  jurisdiction. ^ 

The  general  rule  is  that  a  garnishee  is  protected  by  the 
judgment,  notwithstanding  error  and  irregularity  in  the  pro- 
ceedings.4 

Failure  by  the  garnishee  to  disclose  the  fact  that  the  goods 
in  his  hands  are  subject  to  a  cliattel  mortgage,  resulting  in  judg- 
ment against  him  in  an  attacliment  proceeding,  will  leave  him 
liable  to  a  suit  by  the  mortgagee.^  The  answer  should  disclose 
the  fact  of  the  existence  Oi  the  mortcraoe,  when  ■  within  his 
knowledge,  so  as  to  entitle  him  to  a  discharge  from  the  garn- 
ishment. Tie  would  remain  liable  to  the  defendant  if  he  knew, 
but  did  not  disclose,  that  the  funds  in  his  hands  were  exempt 
from  garnishment. 8 

Sec.   17.    Execution. 

Judgment  with  privilege  upon  the  property  attached  and  in 
court  should  not  be  followed  by  a  writ  oi  fieri  facias ;  for  there 
is  nothing  to  be  seized  oi  levied  upon:^^^ — the  res  being  already 
in  court  actually  or  constructively;  that  is,  in  the  sheriff's  hands 
or  in  those  of  a  keeper,  receiptor,  or  the  defendant  holding 
under  a  forthcoming  bond,  or  whomsoever  has  the  subordinate 

»  Wilson  v.  Burney,  8  Neb.  39;  E.  R  Co.  85  Ind.  471 ;  Woods  «.  Mil- 
Gray  «  Del  &  Hud.  Canal  Co.  5  ford  Savings  Inst.  58  N.  H.  184;  Cot- 
Abb.  N.  Cas.  131.  tie  v.  Am.  Screw   Co.  13   R.  I.  627; 

2  Laidlaw  ■«.  Morrow,  44  Mich.  547;  Howard  «.  McLaughlin,  98   Pa.  St. 
Holland  «.    Srait,    11    Mo.    App.   6;  440;  McDonald  «.  Simcox,  Id.  G19. 
Branahl  v.  Watson,  Id.  587.  ^  Smith  i\  Ainscow,   11  Neb.  476. 

3  Rudolph  '0.  McDonald,  6  Neb.  See  Fhinagan  v.  Cutler,  121  Ma.ss.  96. 
163.  6  Smith  «.    Dickson,  58   Iowa,  444. 

*  Oppenheim  v.  Pittsburg,  Cin.  &c.       See  Field  v.  McKinney,  60  Miss.  763. 

'  Wj  man  v.  Rus.scll,  4  Diss.  307. 


EXECUTION. 


523 


possession.  That  writ  may  be  employed  if  the  property  has 
been  taken  out  of  the  control  of  the  court  by  means  of  a  disso- 
lution bond;  and  also  when  the  judg-ment  is  merely  personal, 
giving  no  privilege  npon  the  attached  fund,  debt  or  property, 
or  giving  it  when  the  res  is  inadequate;  but  manifestly 
there  can  be  no  re-taking  by  the  sherili"  for  the  plaintiif  when 
he  is  already  in  possession  nnder  the  attachment  writ.  The 
attachment  having  been  made  as  a  preliminary  to  execution,  to 
conserve  the  property  for  that  very  purpose,  the  writ  oi  fieri 
facias  is  inapplicable  after  judgment  sustaining  the  attachment, 
so  far  as  such  property  is  concerned. 

The  proper  writ  is  venditioni  exponas.  The  officer  is  com- 
manded to  expose  to  sale  what  he  has  already  under  seizure. 
If  he  has  entrusted  the  attached  property  to  others,  under  bond 
or  otherwise,  in  any  legal  way,  he  must  first  regain  the  actual 
custody;  and  then  he  must  oflfer  it  to  the  public  in  market  overt, 
under  such  writ. 

If  the  judgment  is,  in  eff"ect,  only  in  rem;  that  is,  if  the 
defendant  was  not  served  and  not  in  court,  execution,  can  be 
directed  against  only  the  property  attached  and  held,  whether 
it  prove  suflicient  to  satisfy  the  judgment  or  not,  since  such 
judgment  is  inoperative  beyond  the  value  of  the  res:  hence,  in 
such  case,  nothing  remains  to  be  done  but  expose  to  sale  what 
has  been  attached. 

The  writs  of  attachment  and  vend.  ex.  together  constitute 
all  that  is  embraced  in  i\iQfi.fa.  Together,  they  are  as  though 
a  fi.  fa.  had  been  issued  when  the  writ  of  attachment  was 
issued,  if  that  could  then  have  been  legally  done.  In  other 
words,  the  execution  is  retroactive  in  its  effect,  relating  back  to 
the  levy  made  in  the  incipiency  of  the  suit;  and  it  is  as 
effective  against  all  levies  subsequent  to  that  time,  and  all 
liens  since  created,  as  any  fi.  fa.  is  from  the  date  of  seizure 
thereunder.  The  lien  hypothetically  created  by  the  attach- 
ment levy,  having  now  been  perfected  by  judgment,  may  be 
vindicated  by  the  execution  of  the  property  attached,  as  though 
it    had   been,  all  along,  from  its   incipiency,  a  complete  lien.^ 

1  Porter  ■».  Pico,  55  Cal.  165;  Tyr-  Wallace  v.  McConuell,  13  Pet.  151; 
rel's  Heirs  iJ.Rountree,  7  Peters,  4t)4;      Van   Loan  «.  Kline,  10  Johns.  129; 


524: 


JUDGMENT    SUSTAINING    ATTACiniENT. 


Tlie  execution,  thongli  alwaysi  directed  against  tlie  attached 
property  when  it  is  to  vindicate  a  judicially  recognized  attach- 
ment lien,  can  only  have  binding  effect  so  far  as  the  res  really 
belongs  to  the  defendant.  In  other  words,  only  the  defendant's 
interest  lias  been  validly  attached,  can  have  been  validly  con- 
demned to  pay  the  debt,  and  can  now  be  validly  sold  so  as  to 
convey  a  good,  nninipQachuble,  indefeasible  title  to  the  pur- 
chaser. ^  Nobody  but  the  del'cndunt  has  been  summoned  or 
notified  by  publication;  the  writ  has  had  reference  to  no  prop- 
erty but  his;  jurisdiction  has  been  over  only  him  and  his;  the 
suit  has  been  limited  to  his  interest  as  the  i^es  proceeded 
against;  the  decree  cannot  possibly  divest  the  interests  of  tho.^^e 
who  have  not  been  notilied  or  impleaded;  nothing  but  what 
belongs  to  the  judgment  debtor  can  be  executed  to  pay  his 
debt;  and,  if  the  property  exposed  to  sale  by  the  sheriff  as  that 
of  the  defendant  is  really  such,  and  the  court  has  had  jurisdic- 
tion over  it,  and  has  exercised  it  without  excess,  and  no  fi'aud 
has  vitiated  the  proceedings,  decree  or  sale,  the  purchaser  buys 
as  though  purcliasing  of  the  defeixlant  himself. ^ 

Partnership  property  is  not  only  liable  to  be  levied  upon  for 
a  partnership  debt  but  also  for  that  of  a  member  of  the  firm. 
In  the  latter  case,  sale  of  goods  nni}^  be  prevented  that  the 
intei-est  of  Ui(i  indebted  partner  may  be  ascertained,  which  is 
his  share  of  the  surplus  after  all  the  liabilities  of  the  firm  have 


Goodwin  ».  Ricliardson,  11  Mass.  475 ; 
CofRn  t.  Kay,  1  Met.  212;  Pierson  v. 
Robb.  3  Scam.  143;  Penny  v.  Little, 
0  Scam.  :]0.-);  Welch  -y.  Joy,  13  Pick. 
4':7;  Martin  v.  Dryden,  6  111.  187; 
Gushing  v.  Ilurd,  4  Pick.  2o3;  Sig- 
ourney  v.  Larned,  10  Pick.  7;! ;  Mc- 
Mechan  v.  Gritting,  3  Id.  149 »  War- 
den «.  Adams,  li5  Mass.  233;  Porter 
V.  Millett,  9  Id.  101;  .Jackson  v. 
Chamberlain,  8  Wend.  620. 

1  De  Cells  v.  Porter,  59  Cal.  404; 
Hoag  V.  Howard,  55  Cal.  564;  Pixley 
«.  Hoggins,  15  Cal.  131;  Puidy  v. 
Irwin.  18  Id.  350;  Hunter  ^).  Martin, 
12  Id.  377 ;  Plant  v.  Smythe,   45   Id. 


162;  Wilcoxen  v.  Miller,  49  Id.  195; 
Ledyard  v.  Butler,  9  Paige,  132;  Ells 
V.  Tousley,  1  Paige,  283;  Arnold  v. 
Patrick,  6  Id.  315;  Louusbury  v. 
Purdy,  11  Barb.  494;  Averill  v. 
Loucks,  6  Id.  26;  Thompson  v.  Baker, 
74  Me.  48;  Hurst  v.  Hurst,  2  Wash. 
C.  C.  78;  Finch  v.  Earl  of  Winchel- 
sea,  1  P.  Williams,  278. 

2  Evans  v.  McGlasson,  18  la.  ]5(); 
Orlh  y. .Jennings, 8  Blackf.  420;  Run- 
yan  v.  McClellan,  24  Ind.  165;  Pix- 
ley  V.  Huggins,  15  Cal.  133;  Dodge  i'. 
Walley,  22  Id.  224;  McDonald  v. 
Badger,  23  Id.  399;  Blood  v.  Light, 
38  Id.  053. 


EXECUTION. 


525 


been  extinguished.  Should  the  creditor  insist  upon  tlie  sale  of 
])artnership  goods  to  satisfy  liis  execution  against  the 
indebted  partner,  he  may  be  i-estrained  by  injunction.  Kesoi't 
may  be  had  to  a  court  of  equity  for  the  adjustment  of  the  paitner- 
ship  atfairs  and  the  ascertainment  of  the  judgment-debtor's 
interest  subject  to  execution;  and  another  of  the  partners  is 
competent  to  invoke  the  aid  of  such  court  for  that  purpose. 
Should  the  interest  of  the  indebted  property  not  be  thus  ascer- 
tained before  the  execution  sale,  so  that  it  would  be  sold  subject 
to  subsequent  ascertainment,  the  purchaser  would  become  a 
tenant  in  common  with  the  remaining  partner  or  partners. ^ 
And  the  same  rule  applies  to  joint  owners  and  tenants  in  com- 
mon. ^ 

Though  the  proper  and  most  seasonable  time  for  claiming 
exemption  is  when  the  sheriff  is  about  to  attach -,3  and  though 
it  logically  should  be  at  least  before  judgment,  when  the  debtor 
is  in  court,  lest  he  be  deemed  to  have  waived  it,^  yet  in  some 
States  it  may  be  claimed  under  such  circumstances  between 
judgment  and  sale — as  in  Ohio,^  If  exemption  has  been 
pleaded  on   the   trial  and  the  attachment  has  been  sustained, 


^  Place  V.  Sweetzer  et  al.  10  Ohio, 
143;  Newhall-y.  Buckingham,  14  l.l. 
405;  White  v.  Joues,  38  111.  159,  106; 
Phillips  V.  Cook,  24  Wend.  389 ;  Scrug- 
liam  V.  Caster,  12  Id.  131 ;  Washburn 
V.  Bank  of  Bellows'  Falls,  19  Vt. 
278;  Bard  well  «.  Perry,  Id.  293;  Bur- 
gess V.  Atkins,  3  Black.  337 ;  Moore 
V.  L ample,  3  Ala.  337;  Shaver  v. 
White,  6  Munf.  110;  White  ».  Wood- 
ward, 8  B.  Mon.  484;  Hershtield  «. 
Clatl.n,  25  Kan.  16G;  People's  Bank 
t\  Shrj-ock,  48  Md.  427;  Douglass  v. 
AVinslow,  20  Me.  89;  Tredwell  v. 
IJoscoe,  3  Dev.  50;  Schatgill  v.  Bol- 
ton, 5  jMcCord,  473 ;  Weaver  v.  Ash- 
croft,  50  Tex.  428;  Saunders  v.  Bart- 
lett,  12  Heisk.  310  ;*  Marstnn  v.  Dew- 
lierrj-,  21  La.  Ann.  518;  Choppin  v. 
Wilson,  27  Id.  444;  U.  S.  t).  Williams, 
4  McLean,  230;  Gilmore  v.  N.  Am. 
Sand  Co.  Peters  C.  C.  4C0 ;  Buckhurst 


■».  Clinkard,  1  Shower,  173;  Pope -y. 
Haman,  Comb.  217;  Parker  b.  Pistor, 
3  Bos.  &  Pull.  288;  Johnson  v.  Evans, 
7  Mann.  &  Grang.  240 ;  Stoiy  on  Part. 
§  201,  204;  Gow  on  Part.  §  206; 
Collyer  on  Part.  §  822.  Contra:  Mor- 
rison V.  Blodgett,  8  N.  H.  238;  Deal 
V.  Bogue,  20  Pa.  St.  228,  233. 

2  James  v.  Stratton  et  al.  32  111.  202 
Millville    I).    Brown,    15  Mass.    82 
Reed   v.  Howard,  2  Met.  (Mass.)  36 
Waddell  v.  Cook,  2  Hill,  47;  Blevins 
V.  Baker,  11  Iredell,  !?91. 

3  Sears  v.  Hanks,  14  Ohio  St.  298; 
Frost  «.  Shaw,  3  Id.  270. 

*Butt  V  Green,  29  Ohio  St.  607; 
Dow  V.  Cheney,  103  Mass.  181; 
Smith  V.  Chadwick,  51  Me.  515;  Bell 
V.  Davis,  42  Ala.  460;  Iluswell  v.  Par- 
sons, 15  Cal.  266;  (tnt.e  p.  166. 

5  Close  V.  Sinclair,  38  Ohio  St.  530; 
Haas  V-  Shaw,  91  lad.  384. 


526  JUDGMENT    SUSTAINING    ATTACHMENT. 

there  is  adjudication  against  exemption  so  that  it  cannot  be  after- 
wards set  up  to  defeat  the  execution. i 

Sec.  18.    Garnishment  in  Execution. 

The  effect  of  an  order  of  court  directing  that  the  garnishee 
in  execution  shall  pay  into  court  the  money  which  he  admits  to 
be  due  the  defendant  is  to  subject  such  sum  to  the  satisfaction 
of  the  attaching  creditor's  judgment.  In  such  case,  the  third 
person  suifers  no  wrong.  But  in  case  he  should  deny  indebted- 
7iess,  he  could  not  be  lawfully  ordered  to  pay  anything  into 
court,  unless  his  denial  has  been  overborne  l)y  counter  testi- 
mony. In  order  to  such  result,  there  would  be  necessity  for  a 
trial;  and,  in  such  case,  the  third  person  denying  indebtedness 
ought  to  have  as  much  latitude  of  defense  as  he  would  have  in 
a  suit  by  the  defendant  in  the  attachment  suit  brought  directly 
against  him.  Should  such  ancillary  suit  be  allowed?  Its  allow- 
ance is  not  universal, 2  and  when  it  is  permissible  the  tendency 
is  to  confuse  the  subordinate  with  the  principal  issue. 

A  garnishee  in  execution,  denying  indebtedness,  cannot  be 
com-pelled  to  pay,  unless  the  plaintiff  institutes  action  and  gets 
"judgment  against  him.^  There  should  be  simply  an  order  to 
pay — not  a  general  personal  judgment."* 

AVhen  an  execution  has  been  returned  nidla  bona,  the  attach- 
ment is  abandoned. 3  It  is  equivalent  to  a  return  that  no 
attachment  has  ever  existed,  since  there  could  have  been  none 
if  no  property  is  found  for  it  to  rest  upon.  True,  goods  may 
have  been  attached  but  destroyed  before  time  for  execution.     If, 

1  Perkins  v.  Bragg,  29  Ind.  507;  6  Id.  165;  Atlantic  and  Pacific  K.  R. 
State  v.  Manly,  15  Ind.  8.  Co.  v.   Hopkins,    94   U.    S.    11.      In 

2  In  Kansas,  where  the  garnishee  Georgia,  the  plaintiff  in  an  eject- 
in  execution  denies  indebtedness,  he  meut  suit  may  have  process  of  garn- 
cannot  be  subjected  to  trial,  judg-  ishment  in  aid  of  his  count  for  mesne 
ment  and  execution  in  the  attach-  profits.  Walker  v.  Zorn,  5G  Ga.  35. 
ment  proceeding,  but  the  attaching  ^  Hartman  v.  Olvera,  51  Cal.  501. 
creditor  can  subject  to  execution  See  Wolff  v.  Bant  of  Commerce,  10 
what   the  garnishee  owes  to  defend-    ,  Mo.  App.  586. 

ant  only  by  a  direct  suit  against  the  *  Clark  v.  Foxworfhy,  14  Neb.  241, 

garnishee.      Board   of  Education  v.  '  Butler  v.  White,  2o  Minn.  432. 

Scoville,  13  Kan.  32;  Arthur  v.  Hale, 


GARNISHMENT    IN    EXECUTION.  527 

for  anj  reason,  no  lien  has  been  perlectcd  by  judgment,  the 
attachment  suit  is  at  an  end.  But  if  a  valid  personal  judgment 
lias  been  rendered,  it  may  be  executed  like  any  other  pcrsoruil 
decree;  and,  to  this  end,  a  debtor  of  the  judgment  defendant 
may  be  garnislied  at  tliis  stage,  and  service  may  be  had  upon 
him  anywhere  in  the  State. i  It  is  like  tlie  summons  of  a  wit- 
ness, which  may  be  served  in  any  county. 

If  the  defendant  Las  satisfied  the  judgment,  that  fact  may 
be  pleaded  successfully  by  tlie  garni sliee  in  execution. 2  The 
dissolution  of  the  attachment,  or  the  completion  of  the  execu- 
tion, or  anything  that  terminates  the  j)laintiff's  proceedings 
against  the  defendant  when  not  personally  bound,  may  be  set 
np  by  the  garnishco  as  a  discharge  of  himself  ^  The  garnishee 
in  execution  may  plead  want  of  service  upon  the  principal 
defendant.* 

A  judgment  creditor,  by  garnishing  the  officers  of  a  railroad 
company,  may  subject  to  execution  the  nett  income  of  the  road 
between  the  date  of  a  mortgage  foreclosure  and  that  of  the 
appointment  of  a  receiver,  if  the  decree  of  foreclosure  is  silent 
as  to  such  income,  and  if  the  road  is  run  by  the  company  dur- 
ing the  interval  mentioned,  if  the  trustees  under  the  mortgage 
never  had  possession  nor  claimed  the  ilicome.s  A  co-defendant, 
after  judgment  in  solido,  cannot  be  garnished  in  execution;  an 
exception  to  such  garnishment  should  be  sustained.  ^  The 
proper  course  is  to  issue  a  direct  execution  against  the  property 
of  either  of  the  judgment-debtors.  It  has  been  held  that 
choses  in  action  cannot  be  reached  by  garnishment  in  exe- 
cution.'' 

If  a  judgment  debtor  suffers  property  or  credits  of  his  to 
be  subjected  to  garnishment,  making  no  exception  or  objection 

1  Toledo   R.  R  Co.  v.  Reynolds,  73  *Cota  v.  Ross,  GG  Me.  161. 

111.  487.    But  see  IMarqueze  v.  Le  ^  Gilman  v.  111.  &  Miss.  Tel.  Co.  1 

Blanc,  29  La.  Ann.  194.  McCrary,  C.  C.  170;   Miss.  R.  R.  Co. 

2  Hammett  v.  Morris,  55  Ga.  644;  %.  U.  S.  Express  Co.  81  111.  534. 
Thompson  v.  Wallace,  3  Ala.  132;  «  Baily  «.  Lacey,  27   La.   Ann.  39; 
Price  V.  Higgins,  1  Littell,  274.  Richardson  v.  Lacey,  Id.  62. 

3  Mitchell  V.  Watson,  9  Fla.  100;  ^  Gilmore  v.  Carnahan,  81  Pa.  St. 
Ridlon  V.  Cressey,  65  Me.  128;  Mc-  217. 

Each.u  0.  r.eid,  40  Ala.  410. 


52y  judg:,:ent  sustaining  attaciiiment. 

till  the  garnishee  has  been  condemned  to  paj  or  deliver  for 
execution,  his  rightof  exemption  is  lost.i 

In  Iowa,  exemj»tion  from  garnishment  by  the  laws  of  another 
State  cannot  be  pleaded  unless  the  amount  due  by  the  garnishee 
is  also   exempt  by   the  laws  of  lowa,^      So  in  West  Yii-ginia.-^ 

The  practice  of  examining  garnishees  after  an  unsatisfactory 
answer,  under  an  order  of  court  or  under  statutory  authority, 
after  judgment  against  the  defendant,  is  similar  to  that  of 
examining  them  before  judgment.  It  is  therefore  unnecessary 
to  repeat  what  was  said  in  the  chapter  on  charging  the  garni- 
Bhee,  on  that  particular  subject. 

The  position  of  the  garnishee  being  that  of  a  l^arty  to  a  side 
issue — not  that  of  a  witness  in  the  main  case — a  wife,  who  has 
denied  indebtedness  to  her  husband  in  reply  to  statutory  inter- 
rogatories, may  be  further  examined  with  the  view  of  charging 
her  as  irarnishee  in  a  suit  ao-ainst  him.  While  she  could  not  be 
made  a  witness  against  him,  she  may  be  examined  in  the 
capacity  of  garnishee  though  the  result  be  her  condemnation  to 
pay  into  court  what  she  owes  him,  or  deliver  what  property  of 
his  she  holds,  in  aid  of  the  plaintiif's  writ  of  execution. 

Could  she  shield  herself  from  further  examination  after  hav- 
ing denied  liability  in  answering  the  statutory  questions,  she 
might  thus  interpose  the  sanctity  of  fhe  marital  relation  to  the 
defeat  of  the  ends  of  justice.  Her  husband,  being  already 
adjudged  the  debtor  of  the  plaintiif,  should  in  good  conscience 
permit  the  execution  of  the  judgment  against  any  property  or 
credit  of  his  not  exempt  from  execution.  His  w^ife,  by  failing 
to  disclose  any  such  property  in  her  possession  or  credit  due 
him  from  her,  would  not  be  in  the  position  of  one  refusing  to 
testify  in  a  cause  pending  against  her  husband  but  in  that  of 
one  impeding  the  execution  of  a  judgment  already  obtained. 

Upon  refusal  to  answer  further  question  duly  propounded,  a 
wife  may  be  charged  as  garnishee  in  execution  of  a  judgment 
rendered  against  her  husband,  just  as  any  other  garnishee  may 

1  Randoliih  v.  Little,   62  Ala.   396,  2  Leiber  v.  Union  Pac.   R.    R.  Co. 

overruling  Webb  v.  Edwards,  46  Id.      49  Iowa,  688. 
16.  2  Stevens  v.  Brown,  20  W.  Va.  451. 


CONCUKSUS. 


5-29 


be  cliarged  on  refusal;  l)ut  if,  instead  of  insisting  upon  an  order 
so  charging,  tlie  plaintiff  should  cite  the  garnishee  to  re-appear 
for  another  examination,  he  would  be  understuod  to  waive  Jiis 
riglit  to  have  her  charged  upon  her  Urst  rerusal.^  Such  waiver 
would  be  implied  in  the  case  of  .any  garnishee. 

Sec.  19.    Coneursus. 

One  of  several  attaching  creditors,  after  each  has,  in  a  sepa- 
rate proceeding,  obtained  judgment  against  the  common  debtor. 
may  sue  all  the  others  to  have  his  right  of  priority  adjudged 
contradictorily  with  tliem.^  However  brought  into  contact 
with  each  other,  under  the  varying  practice  of  the  different 
States,  the  rival  creditors  must  have  the  opportunity  afforded 
of  presenting  their  several  judgments  so  as  to  have  their 
respective  liens  marshalled  according  to  rank.  There  must  be 
a  concwsus  of  creditors,  or  something  equivalent,  so  that  all 
questions  ^concerning  their  respective  claims  to  priority  over 
others  may  be  contradictorily  considered  and  finally  deter- 
mined.* 

The  principal  question,  in  such  a  coneursus,  generally  is  that 
concerning  the  date  of  the  attachment.  AVhere  the  act  of 
attaching  is  the  creation  of  the  lien,  as  in  most  of  the  States: 


1  Thompson  t.  Silvers,  59  Iowa, 
670,  in  exposition  of  §  20S4  of  tlie 
Iowa  Code,  (See  McClain's  Stat.) 
providing  that  if  the  garnishee  fail 
to  appear  and  answer  the  interroga- 
tories, without  sufficient'  excuse,  he 
shall  be  presumed  to  be  indebted  to 
the  defei  d  mt  to  the  full  amount  of 
the  plainiitrs  dpmands.  In  this 
case,  the  garnishee  appeared  but 
failed  to  answer  the  additional  in- 
terrogatories on  the  grounds  that  she 
bad  already  answered  the  statutory 
questions  and  that  she  could  not  be 
required  to  testify  against  her  hus- 
band, the  judgment-debtor.  The 
lower  court  having  sustained  these 
grounds,     the     appellate    court    re- 

31 


manded  the  case  and  required  her  to 
answer.  The  reasoning  on  the  wife's 
position  as  garnisliee,  distinguishing 
it  from  that  of  a  ■v/itness  against  her 
husband,  seems  to  be  of  general  ap- 
plication. 

2  In  Ohio,  it  may  be  by  an  original 
petition  in  the  nature  of  a  creditor's 
bill,  making  all  parties  defendants 
"Who  claim  liens  on  the  fund  attached ; 
and  to  this,  the  other  judgment  cred- 
itors or  professed  lien-holders  may 
file  answers  and  cross-petitions,  etc. 
Seibert  v    Swilzer,  35   Ohio  St.  6G2. 

*  Lexington  and  Big  Sandy  R.  R. 
Co.  v.  Ford  Place  Glass  Co.  84  Ind. 
516;  Davis  v.  Friedlander,  104  U.  S. 
570. 


530  JUDGMENT    SUSTAINING    ATTACHMENT. 

and  where  the  first  attacher  has  priority  as  is  almost  universan_y 
the  ease,i  the  precise  time  when  the  act  was  performed  becomes 
very  important.  If  the  property  attached  is  sulticient  in  value 
to  pay  only  the  first  attacher,  the  date  of  seizing  becomes  all 
important. 

The  contest  among  creditors  frequently,  and  indeed,  usually 
takes  place  after  the  proceeds  of  the  attached  property  have 
been  brought  into  court.  If  the  creditor  who  has  caused  exe- 
cution to  issue  upon,  his  judgment,  and  sale  to  be  made,  is 
really  outranked  by  another  attachment  creditor,  or  by  the 
holder  of  a  recorded,  pre-existing,  perfect  lien,  he  Avill  have  to 
give  way  to  the  one  having  the  higher  privilege;  and  his  judg- 
ment must  look  to  the  residue  after  the  first  lien  has  been  satis- 
fied. The  question  between  rival  claimants  for  the  proceeds  is 
settled  by  tlie  judgment  of  distribution.  It  is  almost  always 
after  the  proceeds  are  in  court  that  the  mortgagee  appears  to 
claim  his  prior  right  to  payment.  The  attachment  is  neces- 
sarily subject  to,  and  under  the  mortgage,  since  the  interest  of 
the  attachment  defendant  is  all  that  could  be  validly  attached. 

If  the  defendant  appears  to  object  to  the  confirmation  of 
sale,  he  waives  defects  in  the  publication  notice. 2  If  he  hag 
been  fraudulently  summoned,  he  may  keep  out  of  court,  and 
the  proceedings  will  be  void -,3  but,  for  amendable  defects  in  the 
attachment  writ  and  bond,  the  execution  cannot  be  quashed 
after  judo-ment  at  the  instance  of  one  duly  summoned  or 
notified,* 

1  Allen  V.  Giliiland,   6  B.  J.  Lea,  v.  Strobel,  2  Brev.  80 ;  Robertson  v. 

636;  Moore  u.  Fedewa,  13  Neb.  379;  Forrest,  Id.  406;   Bethune  v.  Gibson, 

Wrigbti;.  Smith,  11  Neb.  341;  Adler  Id.    501;    Williamson    v.   Bowie,    6 

v.  Rotli,  2  McCrary,  445,   (in  which  Munf.   176. 

it  was  held  that  if  there  is  an  attacli-  ^  Helmer  v.  Rehm,  14  Neb.  219. 

ment  in  a  federal  court  and  another  ^  Duringer   v.    Moschino,   93   Ind. 

in  a  State  court,  the   first  made  has  495. 

the   priority   of   lien;)    McBride   v.  '' Miller  «.  Whitehead,  66  Ga.  283; 

Harn,  48  Iowa,  151;  Crowuiushield  Steers -y.  Morgan,  Id.  552. 


EJECTMENT.  531 


CHATTER  XYI. 

^UITS   RESULTANT  FROM   ATTACHMENT. 

§  1.     Ejectment.  §  5.     Bond  Suits  against  Attaching 

2.  Ejectment:    Judgment-Credit-  Officers. 

ors'  Sales  as  to  Warr;inly.  6.     Replevin  Suits  against  Attacli- 

3.  Ejectment:  Judgment-Owners'  in  g  Officers. 

Sales  as  to  Warrant}' ;    Dif-  7.     Subsequent  Suits  against  Gar- 

lerence   between  them  and  nishees. 

Attachment  Sales.  8.     Suits    belweea    Various    Par- 

4.  Ejectment:  Attachment  Debt-  ties. 

ors'    Sales    before    Amend- 
ment of  Radical  Defects. 

Sec.  1.    Ejectment. 

It  is  not  proposed  to  trespass  npon  tlie  grounds  of  writers  on 
tlie  general  subject  of  Ejectment,  nor  even  to  make  a  resume 
of  the  remarks  interspersed  tlirongli  the  previous  chapters  of 
this  woj'k  on  the  essentials  of  a  valid  attachment  judgment  sus- 
ceptible of  withstanding  every  collateral  attack.  It  is  proposed 
however  to  consider  some  important  matters  appertaining  to 
suits  against  purchasers  at  attacliment  sales — matters  with- 
out the  treatment  of  which  the  wo rl%:  would  not  seem  complete. 

"When  all  the  proceedings  including  the  sale  are  in  accord- 
ance with  statute  and  the  general  law  applicable,  the  purchaser 
obtains  a  title  perfect  as  to  the  parties  and  their  privies  in  the 
attachment  suit.  His  title  is  also  good  against  the  notified 
debtor-owner  of  legally  condemned  property  who  did  not  take 
tlie  position  of  a  party-defendant  in  the  case;  and  good  against 
such  debtor's  privies.  As  to  all  these,  the  attachment  judg- 
ment is  res  judicata,  and  therefore  they  cannot  attack  it 
collaterally. 

The  purchaser  must  look  to  the  jurisdiction,  if  he  would  be 
secure  as  a  bidder  at  the  sale.     He  need   not  concern   himself 


532  SUITS    RESULTANT    FKOM    ATTACHMENT. 

al)out  the  erroneous  exercise  of  jurisdiction  by  tlie  court,  -when 
the  judgment  is  final.  The  rule  is  comprehensively  and  yet 
succinctly  stated  by  the  Supreme  Court  of  the  United  States: 
'•The  doctrine  of  this  court  and  of  all  the  courts  of  this  country 
is  firmly  established,  that  if  the  court  in  which  the  proceedino;s 
took  place  had  jurisdiction  to  render  the  judgment  it  did,  no 
error  in  its  proceedings  which  did  not  aifect  tlie  jurisdiction 
will  render  the  proceedings  void;  nor  can  error  be  considered 
when  the  judgment  is  brought  collaterally  into  question."^ 

This  settled  doctrine  renders  it  necessary  that  the  purchaser, 
for  his  own  safety,  should  first  find  that  the  court  had  jurisdic- 
tion-to-render-judgraent — not  merely  authority  to  issue  process, 
to  maintain  custody  of  attached  property,  to  convert  perishable 
things  to  cash,  and  the  like.  The  Supreme  Court  did  not  say, 
in  the  foregoing  extract,  that  any  less  jurisdiction  than  that  to 
render  judgment  would  protect  the  decree  from  assailability  for 
errors  committed  in  the  unwarrantable  assumption  and  exercise 
of  it. 

With  this  rule  to  guide  him,  the  purchaser  must  look  to  the 
statute  which  conferred  the  special  "jurisdiction  to  render  tlie 
jud<:^ment"  and  see  whether  all  the  conditions  precedent  have 
been  observed.  If  any  one  has  been  disregarded,  he  will  pur- 
chase at  his  peril.  lie  cannot  safely  rely  upon  decisions  based 
on  other  statutes,  with  reference  to  errors,  but  he  must  see  what 
the  statute,  governing  the  judgment  under  which  he  proposes 
to  buy,  requires  to  be  done  before  such  jurisdiction  can  be 
exercised.  2 


1  McGoon  ??.  Scales,  9  Wall.  30,  re-  fanlt,  required  by  statute,  was  not 

asserted  in  White  i;.  Crow,  110  U.  S.  made;    (4)    the    required    delay   of 

1^9.  twelve  months  before   sale  was  dis- 

''■  In  Tilton  ■».  Cofleld,  93  U.  S.  105,  regarded.     Of  this  case  it  is  said  in 

the  court  cited  Voorhies  «.   Bank  of  Tilton  «.  Cofleld:    "The  court  tliere 

U.  S.,  10  Pet.  449,  in  which  jurisdic-  [the  trial  court]  being  competent  to 

tion  had  been  siTstained    though  (1)  take    jurisdiction,    and   having    ac- 

"no  affidavit  as  required   by  statute  quired  jurisdiction  by  the  seizure  of 

was  found  filed  with  the  clerk,  and  the  property,  this  court  held  that  all 

the  law  provided  that  if  this  was  not  its  acts  and  orders   made  during  the 

done  the  writ  should  be  quashed  on  progress  of  the  case  were  bej'ond  the 

motion;"  (2.)  no  notice  was  given  or  reach  of  collateral  inquiry  and  could 

none  appeared    of    record;  (3.)   de-  be  assailed  only  in  a  direct  proceed- 


EJECTMENT.  533 

While  errors  in  tlic  exercise  of  Luvful  jurisdiction  to  render 
the  iudtrinent  cannot  be  investio-ated  in  a  collateral  in(|uirv,  the 
jurisdiction  itself  can  he.  Usurpation  of  wrongful  power  is 
not  sacramental  and  inviolable.  A  court's  decision  in  favor  of 
its  own  authority  may  be  collaterally  disregarded.  A  jurisdic- 
lionless  judgment  is  entitled  to  no  faith  and  credit  either  in  the 
State  where  it  was  rendered  or  in  any  other.  The  action  of  a 
court  of  general  jurisdiction  cannot  be  investigated  in  a  State 
other  than  that  in  which  it  was  had  except  for  the  purpose  of 
testing  the  judicial  right  of  action. i 

Were  the  hio'hest  tribunal  of  the  country  to  render  a  iuris- 
dictionless  judgment,  the  decision  would  not  be  authoritative. 
It  would  not  be  binding  as  a  precedent  u};on  that  court  or  any 
other.  Should  it  exercise  judicial  authority  in  any  case  after 
its  jurisdiction  thereof  had  been  exhausted;  or  assume  special 
jurisdiction — such  as  that  in  all  attachment  cases — when  none 
jiad  been  statutorily  coni'erred;  or  trespass  beyond  the  bminds 
of  the  special  power  legislatively  granted  in  such  cases,  its 
deliverances  would  be  coram  non  judice.  They  would  there- 
fore be  void  as  authority  though  binding  on  the  litigants  ex 
necessitate  rei,  since  there  would  be  no  means  of  relief.  The 
mandace  to  the  lower  court  would  be  obeyed  in  any  such  case, 
but  the  opinion  delivered  would  not  be  law. 

The  collateral  assailant  can  take  no  advantage  by  reason  of  the 
want  of  jurisdiction  in  an  ancillary  proceeding  when  there  has 
been  a  judgment  rendered  against  the  defendant  which  is  per- 
sonal in  etlect  as  well  as  i'onn  by   a  court  possessed  of  jurisdic- 


ing  had  for  that  purpose  before  a  and  Oil  Land  Co.  21  W.  Va.  115;  45 
competent  tribunal."  Let  the  pur-  Am.  Rep.  5")5:  The  plaiutiff  sued 
chaser  be  sure  that  the  statutory  on  a  New  York  judgment  and  at- 
aulh(u-ization  of  jurisdiction  in  the  tached  property-  in  West  Virginia, 
State  where  he  bids,  allows  such  but  that  judgment  was  held  void  be- 
errors  to  be  committed  without  cause  notice  was  by  publication  only- 
fatality  when  only  custodial  jurisdic-  and  no  property  had  been  attaclied 
tion  has  been  acquired.  See  Statu-  in  New  York — so  neither  the  debtor 
tai'y  Raquisitea  J urisdietioiial,  ante  nor  his  jiroperty  had  been  readied 
pp.  ;521-328  and  the  authorities  there  there.  See  ante,  Ch.  X,  Sec.  6,  Teu- 
cited.  Krroiu.\L  Limits,  and  the  authori- 
'Gilchrist  v.    "West  Virginia  Oil  ties  there  cited. 


534:  SUITS    EESULTANT    FKOM    ATTACHMENT. 

tion  to  render  sucli  personal  judgment  though  not  to  decree 
privilege  upon  the  property;  and  when  the  sale  was  made  in 
execution  of  such  personal  judgment.  A  rival  attaclier  in 
strictly  statutory  proceedings  nuiy  indeed  assert  any  attachment 
lien  lie  may  have  acquii'ed  njion  ])r()perty  sought  to  be  exe- 
cuted in  elfectuatilig  the  23ersonal  judgment;  he  may  even  fol- 
low such  property  when  it  is  in  the  hands  of  the  purchaser 
Tinder  the  personal  judgment;  but  liis  position  is  precisely  like 
that  of  any  lien-holder  who  was  not  a  party  to  the  snit.  To 
make  the  matter  plain — if  the  property,  (bought  under  a  per- 
sonal jndgment,  good  though  the  attachment  proceedings  were 
null,)  belonged  to  the  defendant  and  was  nnincumbered,  the 
23urchaser's  title  is  good  and  cannot  be  impngned  by  the  defend- 
ant or  his  privies  because  statutory  requisites  have  been  disre- 
garded in  an  accompanying  attachment  proceeding  whicii 
proved  void  for  want  of  them. 

A  stranger  to  a  jurisdictional  judgment  and  sale,  claiming  to 
be  the  owner  of  the  property  sold  as  that  of  the  attachment- 
defendant,  may  sue  the  purchaser  and  have  him  ejected.  This 
is  so  because  attachment  proceedings  are  limited  in  their  effect 
to  the  proprietary  right  of  the  defendant.  The  distinction 
pointed  out  in  the  first  chapter,  (and  which  has  interlarded  all 
the  succeeding  ones.)  between  proceedings  against  property 
of  limited,  and  those  of  general,  character  must  now 
appear  of  great  practical  importance.  The  former  conclude 
the  defendant  and  his  privies;  the  latter  conclude  all  the  world, 
since  "all  the  world  are  parties"  as  it  is  often  said,,  though 
"there  are  no  parties  defendant "  as  it  is  said  as  frequently — 
the  legal  paradox  being  readily  apprehended. 

No  one  can  sue  a  purchaser  for  property  l)oug]it  at  a  valid 
sale,  which  had  been  condemned  under  general  proceedings 
against  it,  without  becoming  a  collateral  assailant  of  the  judg- 
ment of  condemnation;  and,  as  such,  he  must  prove  fraud  or 
want  of  jurisdiction  before  he  can  maintain  his  action;  for  the 
general  notice  made  it  obligatory  upon  him  to  appear  as  claim- 
ant to  assert  any  right  he  had  i?i  or  to  the  res  proceeded  against; 
and  a  failure  thus  to  appear  rendered  him  powerless  ever  to  sue 
thereafter,  if  the  proceeding  was  free  from  fraud  and  by  a  court 


ejectment:  creditors'  sales  as  to  warranty.         535 

possessed  of  power  to  liear  and  dctcnniiic  the  cause,  lie  is 
precisely  in  the  position  of  a  judgment  defendant  in  an  attacli- 
«nent  case  who  should  attempt  to  assail  the  judgment  rendered 
against  him  personally. 

On  the  other  hand,  one  not-  a  party  to  a  limited  proceeding 
against  property,  (such  as  attachment  is,)  is  not  a  collateral 
assailant  of  the  judgment  when  he  sues  the  purchaser  who 
bought  under  the  judgment.  lie  is  not  concluded.  He  may 
freely  admit  the  jurisdiction  of  the  court  and  the  compliance 
with  all  statutory  requisites,  yet  aver  that  the  property  seized 
and  sold  was  his  own. 

The  purchaser  at  an  attachment  sale  should  therefore  not 
only  see  that  the  court  had  jurisdiction  and  thus  know  that  he 
will  be  protected  from  attack  by  the  defendant,  but  he  should 
also  see  that  the  title  he  proposes  to  buy  was  really  in  the 
defendant.  And,  since  he  buys  subject  to  any  lien  or  mortg- 
age resting  on  the  property,  he  should  temper  his  bid  accord- 
ingly. He  must  learn  of  the  title  and  the  incumbrances  from 
the  public  records,  for  the  attachment  proceedings  will  not 
necessarily  disclose  them  to  him.  He  must  learn  as  best  he  may 
that  the  personal  property  he  buys  belonged  to  the  defendant. 
Many  of  the  suits  to  eject  purchasers  of  property  at  attachment 
sales  are  instituted  by  owners  or  mortgagees  who  were  strangers 
to  the  proceedings  under  which  the  property  was  sold. 

Sec.  2.    Ejectment:    Judgment- Creditors'   Sales    as  to 
Warranty. 

There  is  no  warranty  of  the  title.  The  judicial  sale  is  pro- 
voked by  a  creditor;  it  is  strictly  a  creditor's  sale.  Want  of 
warranty  is  not  because  the  sale  is  judicial  but  because  it  is  not 
the  owner  who  moves  the  court.  The  creditor  has  no  special 
ineans  of  knowing  more  of  the  title  sold  than  the  purchaser 
has.  The  debtor  does  not  warrant,  since  he  does  not  sell.  The 
iudo-e  is  not  the  vendor  and  is  therefore  no  warrantor.  The 
executing  officer  is  a  mere  instrument  of  the  law;  and  though 
presumed  to  know  that  what  he  sells  is  the  defendant's,  he  gives 
no  guaranty.     Caveat  emptor. 

Exception  to  the  general  rule  of  no  responsibility  in  creditors' 


536  SUITS    RESULTANT    FKOM    ATTACHMENT. 

sales  must  be  briefly  pointed  out.  The  creditor,  tliongli  not 
ordinarily  presumed  to  know  the  title  sold  any  more  than  the 
judge  or  sheriif  does,  is  yet  the  beneficiary  of  tlie  sale — the 
recipient  of  the  price.  It  has  been  held  that  if  his  gain  is 
another's  loss  by  reason  of  any  agency  of  his,  he  is  liable  to  be 
made  to  repair  the  wrong.  In  other  M'ords,  it  has  been  held 
that  if  the  plaintiff  in  execution  is  instrumental  in  causing  the 
seizure  and  sale  of  property  which  does  not  belong  to  the  judg- 
ment debtor,  and  the  purchaser  is  ejected  at  the  suit  of  a  third 
person  on  an  anterior  and  superior  title,  the  purchaser  can 
recover  the  price  of  the  plaintiff  "upon  the  principle  that  he 
has  parted  with  his  money,  through  the  agency  of  the  plaintiff, 
for  a  consideration  which  has  failed." i  The  writer  would  not 
be  understood  to  say  that  mere  agency  in  causing  the  sale 
always  renders  the  creditor  responsible.  In  all  execution  sales 
the  creditor  is  instrumental  in  causing  the  seizure  and  sale.  It 
is  emphatically  so  in  attachments,  as  the  property  attached  is 
taken  by  the  officer  before  judgment  and  often  long  held  before 
final  sale;  especially  is  the  instrumentality  of  the  attaching 
creditor  apparent  when  he  points  out  property  of  the  defendant 
to  be  attached  and  takes  the  obligation  of  an  indemnity  bond 
to  the  sheriff. 

Doubtless  the  creditor  who  causes  a  purchaser  to  buy  prop- 
erty of  the  debtor  through  false  assurances  that  the  latter  has 
a  good  title  may  be  held  pecuniarily  responsible  for  the  wrong 
done  the  purchaser  who  is  afterwards  evicted  because  the  title 
proved  to  be  not  what  it  was  thus  represented  to  be.  It  does 
not  follow  that  the  creditor  may  be  cited  in  warranty  in  the 
ejectment  suit.  It  is  not  possible  that  he  can  make  the  title 
good.  He  was  not  the  vendor.  The  sale  was  not  an  owner's 
sale.  As  to  the  creditor's  being  the  beneficiary,  he  may  be  con- 
sidered such  rather  than  the  court  or  the  executing  officer  can 
be;  but  the  debtor  is  the  real  beneficiary,  since  he  gets  his  debt 

1  Sanders  ■».  Hamilton, 3 Dana,  550;  Ex'r.  v.     Swigert,   5    B.    Mon.   88; 

Brummell  v.  Hurt,  3  J.  J.  Mar.  709;  Bartholomew  v.  Warner,  32   Ct.  98; 

Hanna  v.  Guy,  3   Bush,   93;     Brom-  Piscataqus    v.    Kingsbury,    73    Me. 

field  V.  Dyer,'?   Bush,  505;  Wolford  32G. 
V.  Phelps,  2  J.  J.  Mar.  35;  Hackley's 


ejectment:  judgment-owners'  sales,  etc.  537 

paid  out  of  tlie  property  of  another  owner.  The  creditor  ig 
only  even:  lie  had  a  judgment,  and  that  is  satisfied.  The 
dehtor  is  the  real  vendor:  the  court  makes  him  sell  against  his 
M'ill.  He  is  not  a  warrantor  consequently,  for  he  is  not  a  volun- 
tary vendor.  The  conclusion  .is  that  ordinarily  there  is  no 
warranty,  though  there  may  he  pecuniary  liahility  to  the  mis- 
led and  evicted  purchaser,  on  the  part  of  the  creditor  who  pro- 
voked the  sale  and  fraudulently  misrepresented  the  character  of 
the  title,  thus  entitling-  the  purchaser   to  equitable  relief. i 

Sec.  3.  Ejectment:  Judgment-Owners'  Sales  as  to  War- 
ranty; Difference  between  them  and  Attach- 
ment Sales. 

Judicial  sales  provoked  by  owners  are  governed  by  the  reverse 
rule.  There  is  warranty;  and  the  maxim,  caveat  emptor,,  is 
inapplicable.  There  is  no  difference,  with  respect  to  obligation 
of  warranty,  whether  the  sale  by  an  owner  be  conventional  or 
judicial.  There  is  nothing  sacred  to  the  mode  of  sale  which 
makes  the  owning  vendor  a  guarantor  under  the  one  method 
and  an  irresponsible  contractor  under  the  other.  All  the  rea- 
sons that  render  a  private  vendor  responsible  for  the  title  he 
conveys  apply  when  any  proprietor  sells  through  a  court. 

Nearly  all  judicial  sales  are  provoked  by  judgment  creditors: 
so,  in  nearly  all,  caveat  emptor  is  applicable;  and  because  such 
sales  are  so  much  more  common  than  owner's  court-sales,  the 
idea  has  become  po]3ular  that  this  mode  of  sale  relieves  from 
warranty.  How  often  we  see  in  law  treatises  and  court  reports 
the  statement  made  unqualifiedly  that  there  is  no  warranty  in 
judicial  sales! 

Tet,  were  the  writers'  and  judges'  attention  called  to  the 
diiierence  between  an  owner  selling  under  court-order  and  a 
creditor  thus  selling,  the  statement  would  be  qualified  by  them 
at  once.  AVho  of  them  would  contend  that  a  judicial  sale  pro- 
voked by  owners  to  effect  a  partition  of  property  is  without 
warranty?      Were    the  subject  now  specially  in  hand,   many 

>  Cooper  V.  Cooper,  4  Irish  Eq.  N.  Eq.  325;  Preston  'o  Frye,  38  Md.223; 
S.  75 ;  Lawrence  «.  Connell,  4  Johns.       Norton  v.  Moyers,  25  Gu.  89. 


538 


SUITS    RESULTANT    FKOM    ATTACHMENT. 


illustrations  of  responsibility  on  the  part  of  the  seller,  and 
relief  to  the  purchaser,  with  the  application  of  the  maxim, 
caveat  venditor^  when  the  sales  were  judicial,  might  be  sug- 
gested, and  authorities  cited,  i 

The  mode  is  immaterial.  The  ovjner  cannot  escape  responsi- 
bility, whether  his  sale  is  private  or  judicial.  He  is  "bound  to 
know  that  he  actually  has  that  which  he  professes  to  sell." 2 

If  he  conveys  nothing,  payment  of  the  price  to  him  would 
be  "without  the  shadow  of  consideration,"  and  he,  though  act- 
ing by  honest  mistake,  could  not  retain  the  price.  ^ 

Governments  selling  as  owners  necessarily  employ  some 
agent  of  sale,  and  often  sell  through  the  courts;  but  they  are 
none  the  less  warrantors  because  of  this  mode  of  sale.  They 
are  morally  bound  to  make  good  the  conveyance;  and  the  fed- 
eral government  has  made  itself  legally  so  bound  by  authoriz- 
ing suits  against  itself  in  the  court  of  claims  upon  any  contract 
expressed  or  implied,  which  includes  the  express  or  implied 
contract  of  warranty.  The  rule  governing  private  contracting 
parties  is  fully  applicable  to  the  sovereign-vendor  when  he 
makes  contracts,  and  must  be  applied  by   courts  in   which  he 


1  Sands  v.  Lynham,  27  Gratt.  304; 
McLaughlin's  Admr.  v.  Daniel,  8 
Dana,  182;  Valle's  Heirs  v.  Flem- 
ming's  Heirs,  29  Mo.  152;  Shroyer  y. 
Nickell,  55  Mo.  269;  Evans  «.  Sny- 
der, 64  Mo.  516;  Hudgens  v.  Hud- 
gens,  6  Gratt.  820 ;  Howard  v.  North, 

5  Tex.  315 ;  Mocklee  v.  Gardner,  3 
Har.  &  G.  176;  Grant  v.  Lloyd,  12  S. 

6  M.  191;  Petty  v.  Clark,  5  Pet.  481; 
Preston  «.  Frye,  38  Md.  222;  Schwin- 
ger  V.  Hickock,  53  N.  Y.  280;  Davis 
®.  Railroad,  1  Woods,  661 ;  Bland  v. 
Bowie,  52  Ala.  152, 162 ;  Bell  v.  Cra.g, 
Id.  215.  (See  McQuiddy  v.  Ware,  20 
Wall.  19;  Gay  v.  Alter,  102  U.  S.79.) 
Strode  t).  Patton,  1  Brock.  228;  Smith 
V.  Wells,  69  N.  Y.  601 ;  Ingersoll  v. 
Mongam,  84  N.  Y.  622. 

2  Allen  V.   Hammond,  11   Pet.  72; 


Garnett  v.  Macon,  2  Brock.  185; 
Gardiner  v.  Mayor,  26  Barb.  423,  and 
cases  cited ;  Martin  v.  McCormick,  4 
Seld.  331 ;  17  Com.  Bench,  N.  S.  721 ; 
1  Met.  (Ky.)  192-3. 

2  Allen  V.  Hammond,  11  Pet.  63, 
71,  72;  Hart  v.  Swayue,  Law  Kep.  7, 
Ch.  Div.  42;  Hitchcock  v.  Giddings, 
4  Price,  135 ;  Conturie  v.  Hastie,  5 
Ho.  Lords  Ca.  673,  681  ;  Daniel  v. 
Mitchel,  1  Story,  190;  Torrance  v. 
Bolton,  L.  R.  14  Eq.  124;  Rice  v. 
Dwight  Man.  Co.2  Cush.  80;  Thomp. 
son  «.  Gould,  20  Pick.  139,  141  and 
cases  cited ;  Gardner  v.  Lane,  9  Allen, 
492,  499;  Paddock  t).  Klttredge,  31 
Vt.  3S3;  Martin  v.  McCormick,  4 
Seld.  331 ;  Sugden  on  Vendors  and 
P.  120,  14  Ed.;  Fish  v.  Street,  27 
Kan.  270. 


ejectment:  judgment-owners'  sales,  etc.  539 

allows  himself  to  be  sued;  for,  otherwise,  his  consent  to  he 
sued  would  be  delusive,  i 

In  government  cases  of  forfeiture,  the  judicial  sales  that  fol- 
low condemnation  are  not  in  execution  of  the  judgment.  The 
government  becomes  the  owner  by  the  forfeiture,  and  need  not 
sell  at  all.  It  does  not  become  a  judgment  creditor,  bound  to 
sell  to  eifectuate  the  judgment.  It  sells  because  it  does  not 
choose  to  become  a  general  property-holder,  and  because  the 
statutes  authorizing  the  forfeiture  proceeding  usually  provide 
for  sale  to  follow.  Some  of  such  statutes  provide  for  the  reten- 
tion of  the  condemned  res  by  the  government;  one  or  more 
authorize  its  private  sale.  It  is  so  common  however  for  judi- 
cial sales  to  follow  such  condemnations  that  some  have  supposed 
such  vendition  to  be  in  execution  of  the  judgments,  and  to  be 
necessary  under  any  circumstances.  There  is  an  amusing 
instance  of  the  government  selling  its  own  money.  Having 
seized  and  caused  the  condemnation  of  ten  thousand  dollars,  and 
having  thus  become  the  adjudicated  owner  and  possessor  of 
that  sum,  it  actually,  under  vend,  ex.,  sold  its  own  money  at 
auction.  2  It  exchanged  its  dollars  for  equivalent  dollars.  If 
the  Secretary  of  the  Treasury  should  expose  the  specie  of  his 
vaults  at  vendue,  the  operation  would  not  be  more  superfluous 
and  u;imeanirig. 

Should  suit  be  instituted  against  the  United  States  to  recover 
the  money,  (now  wrongfully  in  the  treasury  if  the  judgment 
of  forfeiture  was  a  nullity,)  would  the  curious  ordeal  through 
which  the  ]noney  passed  enable  the  defendant  to  keep  the 
money  on  the  plea  that  the  sale  was  judicial? 

Untenable  as  such  a  defense  would  appear,  it  is  not  more  so 
than  it  would  be  if  interposed  against  the  recovery  of  the  price 
of    land   or   other   property   sold  by  the  government  as   owner 

1  McKniglit  V.  United  States,  98  U.  he  can,  on  the  plainest  principles  of 

S.   180.       bee   Marsh   ®.   Fulton,  10  common  justice,  maintain  this  action 

Wall.  096;  U.  S.  D.  Arredondo.  6  Pet.  and    recover    it    back."      Brand    v. 

711;    Polk   t\  Wendall,  9    Cr.  87-99.  United   States,  5  Ct.  of  Claims,  312; 

If  the   plaintiff's   money  is  "wrong-  Bank  Cases,  10  Id.  519;  U.  S.  c.  State 

fully  in  the  treasury,  and  an  implied  Bank,  90  U.  S.  30. 

contract   results  in  the   nature   of  a  ^  iMeutioued   in    Phocui.x   Bank  v. 

contract  for  money  had  and  received,  Bisley,  111  U.  S.  128. 


540  SUITS    RESULTANT    FKOM    ATTACHMENT. 

under  a  void  judgment  of  forfeiture.  The  sale  of  condemned 
land  would  not  be  absurd  like  the  sale  of  dolhirs  for  dollars; 
but  the  plea  that  the  price  may  be  kept  because  the  sale  was 
judicial,  when  the  condemnation  has  been  adjudged  void,  is  as 
untenable  in  the  one  instance  as  in  the  other. 

And  yet,  in  the  last  case  cited,  and  in  that  which  the  court 
had  under  review, i  a  proceeding  upon  forfeiture  was  held 
not  general,  but  limited;  just  as  though  it  had  been  an  at- 
tachment suit  against  the  property  of  a  debtor  in  which  the 
judgment  would  be  void  if  the  property  pi'oved  to  have  be 
longed  to  some  other  owner.  In  the  one  case,  the  sale,  though 
judicial,  is  provoked  by  an  adjudicated  owner  who  is  bound 
to  make  it  good;  in  the  latter,  the  sale,  though  also  judicial, 
is  provoked  by  a  creditor,  and  is  made  in  execution  of  the 
judgment. 

In  The  Phmnix  Bank  v.  Eisley^  snijra^  the  Supreme  Court 
did  not  reaffirm  its  own  decisions  which  had  been  relied  upon 
by  the  Court  of  Appeals  to  prove  that  the  forfeiture  under  con- 
sideration M^as  of  the  same  effect  as  an  attachment  judgment, 
but  put  its  opinion  on  the  ground  taken  by  the  trial  court — 
that  the  money  forfeited  was  not  the  money  sued  for  by  Ilisley; 
that  a  special  deposit  was  condemned  but  a  general  deposit  sued 
for,  etc.  There  are  remarks  however  indicating  that  the  court 
recoo-nized  a  resemblance  between  forfeiture  under  the  statutes 
discussed  and  a  judgment  for  debt  in  favor  of  an  attaching  credi- 
tor. *  It  is  unnecessary  to  do  more  than  merely  advert  to  this. 
Though  the  proceeding  was  for  forfeiture  and  the  seizure  not  in 
admiralty,  it  was  suggested  that  there  might  have  been  garnish- 
ment under  the  thirty-seventh  Admiralty  Eule,  relative  to  ad- 
miralty attachments,  by  authority  of  a  statutory  provision."'' 

AVhatever  the  method,  an  owner  cannot  have  the  price  of  what 
he  sells  after  it  has  been  decided  that  he  gave  no  title;  after  the 
purchaser  has  been  evicted  at  the  suit  of  one  exhibiting  an  ante- 
rior and  superior  title. 

Suppose  two  persons   should   assume   to  own    another's   j)rop- 

1  Risley  v.  Phcenix  Bank,  8cJ   N.  Y.  ^xn  Stat,  at  large,  p.  591,  §  7,  now 

318.  repealed. 


ejectment:  judgment-owners'  sales,  etc.  541 

erty  in  partnership,  collude  to  defraud  liiin,  sue  for  a  sale  to 
effect  a  partition,  obtain  a  court  order,  and  pocket  the  proceeds 
— would  the  purchaser,  subsequently  evicted  by  the  real  owner, 
be  cut  off  from  the  recovery  of  the  price  because  the  sale  was 
judicial?  Suppose  an  administrator  should  cause  the  judicial 
sale  of  property  not  belonging  to  the  estate  he  administers, 
would  the  purchaser,  when  ejected  by  the  true  owner,  have  no 
claim  to  recover  the  price? 

Fraud  might  be  shown  in  the  supposed  cases,  it  will  be 
replied.  In  answer  it  may  be  said  that  legal  as  well  as  moral 
fraud  invalidates  a  sale.  It  is  legal  fraud  for  one  to  sell  what 
he  does  not  own,  even  though  he  sell  through  honest  mistake; 
and  the  purchaser  is  entitled  to  relief  and  complete  indemnifi- 
cation. ^  A  mistake  is  as  good  a  ground  for  relief  as  fraud. 2 
The  law  holds  the  vendor  bound  to  know  that  he  has  that  which 
he  sells; 3  and  the  purchaser  may  rightfully  rely  upon  liis  rep- 
resentations.'* And  a  misrepresentation  in  a  judicial  sale,  mis- 
leading the  purchaser,  entitles  him  to  relief  as  fully  as  if  made 
in  a  private  sale.^ 

"  The  juridical  influence  of  error  is  united  with  the  juridical 

1  Hart  V.  Swaine,  Law  Rep.  7  Ch.  v.  Rice's  Admr.  27  Gratt.  474;  Park- 
Div.  42;  Rawlius  «.  Nickham,  3  ham  v.  Randolph,  5  How.  (Miss.1 
DeG.  &  J.  316;  Bower  v.  Fenn,  90  451;  Reynell  v  Sprye,  1  Do  G  M  & 
Pa.  St.  3G2.  G.  710;  Smith  v.  Reese  River  S.   & 

2  Daniel  v.  Mitchel,  1    Story,  190;  M.  Co.  L.  R.  2  Eq.  264. 

Paddock   V.  Kitredge,   31    Vt.    383;  ^  Cooper  «.  Cooper,  4  Irish  Eq.  R. 

Smith  V.  Richards,  13   Pet.  38;  Tor-  (N.  S.)   75;    Lawrence  «.   Cornell,  4 

rence  v.  Bolton,  L.  R.  14  Eq.  Ca  124;  John.   Ch.   352;    Preston  v.  Frye,  3S 

Reese   River   S  M.  Co.  c    Smith,  L.  Md.  222;    Norton  ®.  Moyers,  25  Ga. 

R.  4   H.  L.  Ca.  80,  Peck  v  Guerny,  89;  City  of  Charleston  t'.  Blohme,  15 

L.  R.  79,  113;  Redgrave  t.  Hurd,  20  S.  C.  124;    (See  State  v.  Gaillard,  2 

Ch.  Div    12,  13;  Plielps  «.  White  7  Bay,   11;  Means?).  Rrickell,  2   Hill, 

L.R.  Irish  Eq.  IGO;  MathiasD.Yetts,  G57;    Adams  v.   Kibler,  7   S.  C.  58; 

46  L.  T.  (N.  S.)  497.  Mitchell   v.  Pinckney,    13  S.  C.  202) 

^  Allen  V.  Hammond,  11   Pet.   72;  In   Cooper  v  Cooper,  property  sold 

Garnett    v.    Macon,    2    Block.   285;  under  a  decree  was  represented  as 

Cato  V.   Thompson,  47   L  T.  (N.  S.)  within  certain  bounds  and  coutain- 

491.  iiig  a  specified   quantity.     The  pur- 

*Boyce    V.   Grundy,   3    Pet.   218;  chaser  paid  the  price  and  took  pos- 

Mead  v.  Bunn,  32  'N.  Y.  275 ;  Brown  session    but  was   afterwards   evicted 


542  SUITS    RESULTANT    FEOM    ATTACHMENT. 

facts  of  a  case,  ex  facto  oritur  jus,  or  witli  tlie  grounds  of  the 
rise  and  fall  of  the  legal  relations.  Error  may  modify  excep- 
tionally the  regular  consequences  of  judicial  facts.  Where  there 
is  no  contract  for  want  of  an  aggregatio  rnentitim,  the  conclu- 
sion is  clear.  Where  Q\Y.n-  does  not  aifect  the  legal  relations, 
there  is  restitutio  in  integrum.  The  idea  of  the  law  is  to  give 
relief  where  no  fault  exists;  where  it  is  difficult  or  impossible 
to  avoid  an  error  of  law,  relief  is  given." ^ 

Responsibility  cannot  be  escaped  on  the  argument  that  the 
other  contracting  party  had  notice  of  the  nullity  of  the  title 
when  tlie  mutual  stipulations  were  entered  into.  If  one  had 
notice,  both  had;  for  the  selling  contractor  was  bound  to 
know  that  he  legally  owned  that  which  he  professed  to  sell.^ 

It  was  said  of  vendors:  "The  defendants  undertook  to  sell 
something  when  really  they  had  nothing  to  sell.  The  thing 
intended  to  be  sold  had  no  legal  existence;  and,  where  that  is 
the  case,  there  can  be  no  contract  of  sale."^  "It  w^as  not 
selling  an  interest  subject  to  chance,  for  the  defendant  liad 
no  interest  at  all  to  which  a  chance  could  attach."^ 

If  the  sale  is  purely  apparent,  not  in  the  least  degree  real 
and  actual,  it  is  without  any  judicial  existence;  and  its  legal 
non-existence  may  be  urged  by  the  true  proprietor  against  the 
buyer  as  much  as  by  the  buyer  against  the  seller. ^  "The 
obligation  to  do  justice  rests  upon  all  persons,  natural  snd  arti- 
ficial; and  if  a  county  obtain  the  money  or  property  of  others 

of  a  portion  at  the  suit  of  another.  as  owners  of  property  adjudicated  to 

It  was  held  that  notwithstanding  the  them. 

purchase  money  received  at  the  judi-  i  Snell  v.  Ins.  Co.  98  U.  S.  85;  Mer- 
cial  sale  had  been  partially  dislribut-  chants'  Bank  of  Baltimore  v.  Camp- 
ed, the  purchaser  was  entitled  to  bell,  75  Va.  455. 
compensation  because  he  had  not  ^  ^jigQ  ^.  jjammond,  11  Peters,  72; 
got  what  the  court  had  assumed  to  Garnett  v.  Macon,  2  Brock.  185. 
sell.  To  the  same  effect :  Strode  v.  ''Gardner  tj.  The  Mayor,  26  Barb. 
Patton,  1  Brock.  228;  Ingersoll  v.  at  p.  427,  and  the  authorities  theie 
Mongam,  84  N.  Y.  622;  Smith  «.  cited;  2  Kent,  468;  1  Story  Eq.  Jur. 
Wells,  69  N.  Y.  601 ;  Shirley's  Admr.  §  §  142,  143. 

■y.  Jones,  6  B.  Mon.  275.     The  case  of  ^Hitchcock  v.   Giddings,  4  Price, 

the  Monte  Allegre,  9  "Wheat.  616,  in  135,  quoted  in  26  Barb,  (just  cited,)  at 

which    caveat  emptor    was  invoked,  p.  426. 

was  ?ioi  a  sale  by  the  United  States  ^Benders. Fromberger, 4 Da]las,436. 


ejectmekt:  judgment-ownkrs'  sales,  etc.  543 

without  aiitliurity,  tlie  law,  iiulepetidcnj;  of  any  statute,  Avill 
compel  restitution  or  compensation." ^ 

The  nullity  of  a  judgment  precludes  the  application  of  caveat 
emptor^  and  renders  caveat  venditor  the  proper  maxim;  for 
"the  vendee  might  resist  an  action  for  the  purchase  money  by 
showing  that  no  contracts  of  sale  could  grow  out  of  that  which 
was  in  a  law  a  nullity.^ 

And  it  has  been  held  for  a  long  time  that  money  paid  under 
a  void  judgment  or  sale  may  be  recovered  back  on  the  ground 
of  a  failure  or  want  of  consideration. ^ 

It  is  the  duty  of  the  selling  party  to  see  to  the  sufficiency  of 
the  authority  for  pelliug.4  The  purchaser,  even  at  a  tax  sale, 
has  the  right  to  presume  that  the  officer  selling  has  authority  to 
sell  what  he  offers,  and  he  may  recover  the  price  bidden  and 
payed,  if  the  officer  had  no  authority  or  if  the  State  had  no 
right  to  sell.  5 

]SIo  particular  form  of  words  are  legally  prescribed  fpr  the 
stipulation  of  warranty.^  The  existence  of  that  W'hich  is  the 
object  of  the  price  is  always  warranted,  without  the  necessity  of 
express  guaranty  in  the  deed.  Acceptance  of  the  price  by  the 
seller,  whether  a  private  or  sovereign  vendor,  is  ratification  of 
the  warranty.  "^ 

When  any  one,  not  an  owner,  has  sold  real  estate  as  his  own, 
and  the  purchaser  has  been  evicted  of  the  property,  and  made 

>  Marsh  v.  Fultou  Co.  10  Wall.  676;    .  27  Gratt.  291,  304;  Earl  v.  Bicksford, 

TJ.  S.  •».  Arredondo,  G  Pet.  711;  Mc-  6  Allen,  549,  550. 

Knight  V.   United   States,  98   U.    S.  *  Norton  t).  Rock  Co.  13  Wis.  Gl  1-3; 

186.  McGoren  v.    Avery,  37    Mich.    121; 

2  Commissioners  «.  Watts,  10  Watts,  Gardner  v.  Mayor,  26  Barb.  423. 
392-3;  Bramlield  v.  Dyer,  7  Bush,  ^  i3  Wis.  611-3;  37  Mich.  121-2; 
505,508;  Darwin  v.  Hatfield,  4  Sandf.  cited  in  full  on  the  previous  point. 
Sup.  Ct.  4()8;  Shirley's  Adm.  v.  ^  Newcombv.  Presbrey,  8  Met.  410; 
Jones,  G  B.  Mon.  275;  Post  v.  Leet,  8  Van  Rensselaer  v.  Kearney,  11  How. 
Paige,  837;  Seaman  v.  Hicks,  lb.  322,323,  325;  Chitty  on  Coutr.  643, 
655 ;  Brown  v.  Frost,  10  lb.  243.  (Hth  Ed.) 

3  Newdigate  v  Davy,  1  Ld.  Raym.  ''  Brown  v.  United  States,  6  Ct.  of 
742;  Chapman  v.  City  of  Brooklyn,  CI.  171 ;  Veazie  v.  William,  8  How. 
40N.  Y.  372;  McGoren  i).  Avery,  37  157;  Elwell  v.  Chamberlin,  31  N. 
Mich.  121-2;  Norton  D.  Rock  Co.  13  Y.  619;  Churchill  v.  Palmer,  115 
Wis.  611,  612-3;  Henderson  v.  Over-  Mass.  310;  2  Ct.  of  CI.  47(>. 

ton,  2Yerg.  394;  Sands    .  Lj'udham, 


544  SUITS    KESULTANT    FEOM    ATTACHMENT. 

accountable  for  the  rents  from  tlie  date  of  his  possession,  it  has 
been  held  that  the  rule  of  damages  is  "the  consideration  or 
value  c^f  the  land  at  the  time  of  the  sale  as  then  agreed  upon  by 
the  parties  or  as  determined  bj  the  price  paid,  with  interest  for 
such  time  as  the  purchaser  has  been  deprived  of,  or  is  accounta- 
ble to  the  superior  owner  for  the  mesne  profits,  together  with 
the  costs  in  defense  of  the  action  by  which  the  party  was 
evicted."! 


Sec.    4.     Ejectment:    Attachment- Debtors'    Sales   before 
the   Amendment  of  Radical  Defects. 

When  third  persons  have  acquired  right  to  or  in  property,  at 
a  time  when  the  attaching  creditor  has  acquired  no  lien  what- 
ever, they  cannot  be  affected  by  a  subsequent  judgtnent  in  favor 
of  the  attaching  creditor,  Tlie  purchaser  of  property  at  a 
judicial  sale  provoked  by  the  attaching  creditor  in  execution  of 
a  judgment  upon  a  void  writ  or  warrant,  cannot  hold  against  a 
purchaser  from  the  defendant  though  the  latter  may  have 
bought  after  the  levy.  3  But  there  are  stages  in  the  course  of 
the  lien's  creation  from  its  inception  by  seizure  to  its  perfection 
by  judgment  and  its  final  enforcement  by  the  execution  of  the 
decree  in  the  sale  of  the  attaclied  property  and  the  satisfaction 
of  the  debt  from  the  proceeds,  in  which  sale  or  hypothecation 
by  the  debtor  to  third  persons  gives  rise  to  interesting  ques- 
tions. 

If  property  has  been  attached  under  defective  proceedings 
which  ai-e  subsequently  amended,  may  the  debtor  sell  or  hypothe- 
cate it,  before  the  amendment,  so  as  to  give  the  purcliaser  or 
mortgagee  a  right  to  or  in  it  free  from  any  attacliment  lien? 

The  hypothetical  character  of  the  lien  needs  a  word  of  expla- 
nation. It  is  different  at  different  stages  of  the  proceedings 
prior  to  judgment.  When  the  issue  of  the  writ  creates  the 
lien  it  is  on  the  condition  that  the  execution  of  the  writ  and  all 
other    proceedings  necessary  to   judgment    shall    follow;    and 

1  Bender  v.  Fromberger,  4  Dallas,       474-475  and  cases  cited. 
43G-444.     II.    Greenleaf 's  Ev.  §   2G4  ^  O'Farrell  v.  Heard,  22  Minn.  189. 

and  cases  cited.     IV.  Kent's  Com.  * 


ejectment:  attachment-debtors'  sales,  etc.  545 

where  the  execution  of  the  writ  crctites  tlie  h'cn,  it  is  on  the 
condition  that  such  proceedings  shall  follow;  and,  under  both 
practices,  the  preliminary  requisites  must  have  been  observed 
before  such  lien,  dependent  upon  subsequent  judgment,  can 
be  legally  brought  into  being.  .If  seizure  has  been  made  and  the 
summons  returned  unserved  and  publication  has  been  ordered, 
what  is  the  character  of  the  lien  at  that  stage?  Tlie  debtor  has 
not  been  reached:  can  he  sell  the  seized  property  free  from  the 
lien?  If  he  can,  the  attachment  remedy  w^ould  often  prove 
worthless.  The  attaching  creditor  must  have  due  time  in  which 
to  comply  with  statutory  requirements.  He  is  guilty  of  no 
laches  when  he  has  caused  a  summons  to  issue  and  publication 
to  follow:  it  is  the  law  M'hich  requires  a  period  in  wliich  the 
advertisement  shall  stand  and  fixes  the  time  for  the  sheriff's 
return  showing  the  publication,  and  it  may  be  owing  to  incon- 
trollable  circumstances  that  the  debtor  cannot  be  brought  into 
court.  There  is  a  space  of  time  between  seizure  and  the  com- 
pleting of  the  time  of  notice  when  the  attachment  proceeding 
has  not  been  brought  home  to  the  defendant;  and  then,  though 
the  lien  depends  upon  the  publication  for  the  full  time,  the 
character  of  it  is  such  that  the  defendant  cannot  convey  the 
attached  property  free  from  the  incumbrance.  It  has  beeu  held 
that  a  pending  attachment  proceeding  cannot  be  treated  collat- 
erally as  void  for  errors  that  are  amendable.  ^  If,  however,  the 
preliminary  statutory  requisites  have  not  been  observed,  or  the 
observance  has  been  fatally  defective,  or  the  notice  issued  is  void 
for  any  cause,  the  defendant  may  sell  the  attached  property  free 

'Barber  v.   Smith,  41    Mich.   188.  Lynch  i).  Mechanics' Bank,  13  Johns. 

See   Tilton  v.  Cofield,  93   U.  S.  163;  127;  Pate -y.  Bacon,  6  Muuf.  219;  Tot- 

Kimball  «fec.   Man.  Co.  «.  Vroman  35  ty   v.   Donald,  4   Id.  430;  Barnett  v. 

Mich.  310;  'Merrill   v.  President  &c.  Watson,  1  Wash.  (Va.)  372;  Bentley 

of   Kalamazoo,   Id.  211;     Smith  v.  for   Smith  3  Caines,    170;    Lewis  t;. 

Canfield,  8  Mich.  493 ;  Final  v.  Back-  Locke,  41   Vt.  11 ;  Wright  v.  Hale,  2 

us,  18  Mich.  218;    Johnson  ».  Hunt-  Cush.  486;  Crafts  i;.  Sykes,  4  Gray, 

ington,   13   Ct.  47;    Tobey  u.  Claflin,  194;  Nimmon  ?).  Worlhington,  1  Ind. 

3   Sumn.  379;    Brace  v.  Benson,  10  376;  Jones  «.  Miller,  1  Swan,  (Tenn.) 

Wend.   214;    Bartholomew  v.  Chau-  319,  relative   to   amendments   in   at- 

tauqua    Co.    Bank,    19    Weud.    99 ;  tachments  and  other  proceedings. 

35 


546  SUITS    EESULTANT    FKOM    ATTACHMENT. 

from  lien,  and  an  lionest  purchaser  would  acquire  a  good  title 
from  him  at  this  stai^e. 

If  preliminaries  were  merely  irregular  hut  the  issued  notice 
void,  the  subsequent  general  appearauce  of  the  defendant  would 
cure  both  and  render  the  seizure  good,  as  to  himself,  from  its 
date.  But,  viewed  IVom  the  position  of  one  who  meanwhile 
honestly  has  purchased  or  acquired  a  lien,  the  question  is  whether 
he  would  be  affected  by  the  subsequent  appearing  of  the  defend- 
ant thus  healing  the  defect  of  the  publication? 

It  was  held  that  a  writ,  void  because  it  did  not  contain  any 
direction  to  the  sheriff  to  summon  the  defendant,  as  required  by 
statute,  and  because  the  affidavit  did  not  state  the  debt  to  be 
due  as  required,  and  did  not  state  the  amount  of  indebtedness 
above  all  legal  set-offs,  could  be  amended  only  as  between  the 
parties,  so  that  rights  of  third  persons  intermediately  acquired 
could  not  be  affected  by  the  amendment.  ^ 

The  action  was  bronglit  by  Brunette,  sheriff,  against  Whitney 
for  trespass  by  replevying  timber  held  under  attachment.  The 
validity  of  the  attachment  was  drawn  in  question;  and  it  was 
held  void  on  the  grounds  above  stated.  Could  such  void  writ 
be  amended?  Mr,  Justice  Paine,  in  delivering  the  opinion  of 
the  court,  said  that  the  statute  of  amendments  then  in  force 
was  "  very  broad  and  liberal.  It  provided  that  the  court  in 
M'hich  any  action  was  pending  might  'amend  any  y)rocess,  plead- 
ing or  proceeding  in  such  action,  either  in  form  or  substance, 
for  the  furtherance  of  justice,'  etc.  But  I  think  this  relates 
only  to  such  defects  as  do  not  render  the  process  absolutely  void. 
There  must  be  something  to  amend,  and  a  void  writ  is  a  nullity. 
To  amend  in  such  a  case  would  be  to  create  a  writ  anew,  giving 
it  a  retroactive  effect.''^  He  added  that  if  a  void  writ  can  be 
helped  by  amendment,  it  can  be  done  only  so  as  to  affect 
the  parties — not  a  third  person  who  has  acquired  rights  before 
the  amending.  3 


^  Whitney  «.  Brunette,  15  "Wis.  Gl.  ner   v.   Viin  Alslinp,  0   Jolins.    38G; 

*  Citing:    Bunn    v.    Thompson,   2  Kyles  ?;.  Ford,  2  Kand.  4. 

Joliu.  190;  Burk  v.    Barnard,   4   Id.  ^Citing:   Witte  v.  Meyer,  11  Wis. 

309;  Bell  V.  Austin,  13  Pick  90;  Gar-  300. 


ejectment:  attaciiment-debtoiis'  sales,  etc.  547 

In  tlie  attaclnneiit  suit  under  'wliicli  tlic  slicriiT  li;id  lioM  tlie 
timber,  the  defendant  had  appeared  and  tliiis  healed  the  want  of 
notice  so  far  as  lie  was  concerned,  but  Whitney  had  bouo-lit  the 
property  before  the  heab'ng  of  the  defect;  and  as  lie  was  not  a 
party  to  that  suit,  his  title  was  unaffected  by  the  emendation. 

It  is  true  that  he  bought  of  the  attachment  defendant,  but  it 
was  held  that  he  was  not  therefore  a  privy  in  such  a  sense  as  to 
render  the  judgment  that  followed  preclusive  againsl  himself. 
The  learned  justice  said:  "It  is  true  that  privies  as  well  as 
parties  are  bound  by  a  judgment.  But  I  do  not  understand 
that  rule  to  go  so  far  as  to  hold  purchasers  bound  by  subsequent 
litigation  in  respect  t(»  the  property  between  their  vendors  and 
others.  Privies,  within  the  rule,  are  those  who  subsequently 
to  the  litigation  succeed  to  the  rights  of  the  parties." 

It  was  contended  that  because  the  attachment  defendant  had 
appeared  and  moved  to  set  aside  the  attachment  and  had  had 
judgment  against  him,  the  decree  sustaining  the  proceedings 
WAS,  res  judicata:  to  which  the  court  say  that  "the  true  ans- 
wer to  this  position  is,  that  the  decision  of  a  court,  in  a  pro- 
ceeding in  which  it  has  not  jurisdiction,  does  not  give  it  juris- 
diction. *  ^  *  Upon  any  other  principle,  the  decision  of 
any  tribunal  not  having  jurisdiction,  in  favor  of  its  jurisdiction, 
would  give  its  judgment  equal  validity  with  that  of  a  court 
having  jurisdiction.  The  question  in  every  such  case  is.  Was 
there  jurisdiction?  and  not.  Did  the  court  assuming  to  exercise 
it  declaz'e  that  there  was?  And  the  power  to  decide  upon  its 
jurisdiction  is  not  the  very  jurisdiction  in  question.  For  every 
court  has  this  power,  and  if  that  gave  it  jurisdiction,  it  would 
be  the  duty  of  every  court  in  all  cases  to  decide  in  favor  of  its 
own  jurisdiction,  for  the  very  power  to  decide  at  all  on  the  ques- 
tion would  show  that  it  had  the  jurisdiction,  which  is  an 
absurdity." 

Conceding  that  the  personal  judgment  against  the  attachment 
defendant  after  his  general  appearance  was  res  judicata  as  to 
him,  the  court  concluded  that  it  did  not  operate  on  the  attached 
timber  nor  affect  the  title  of  the  purchaser  who  had  bought  of 
the  defendant  before  he  had  appeared. 

As  suggested  by  Chief  Justice  Dixon  in  the  same  case,  this 


548  SUITS    RESULTANT    FROM    ATTACII:^rENT. 

principle  has  frequently  been  recognized  in  contests  between 
competing  attackers.  When  the  senior  attaclnnent  has  been 
void  for  want  of  the  statutory  requisites,  a  junior  one  has  been 
given  the  precedence,  though  tl)e  former's  defects  have  been 
subsequently  supplied;  and,  when  not  supplied,  the  junior 
attacher  may  have  the  senior  writ  set  aside. ^ 

In  the  latter  case,  the  same  court  held  that  the  statutory 
requisite  that  "  in  all  cases  where  publication  is  made,  the  com- 
plaint shall  be  first  filed,  and  the  summons  as  published  shall 
state  the  time  and  place  of  such  tiling,"  is  essential  to  the  jur- 
isdiction; and  that  if  the  property  attached  be  sold  by  the 
defendant  after  such  publication  and  before  his  voluntary  appear- 
ance in  the  case,  the  purchaser  would  obtain  a  good  title.  2 

Before  the  appearance  of  the  defendant  in  the  above  cited 
case,  judgment  by  default  had  been  rendered  and  the  land 
attached  had  been  sold  under  execution.  He  then  appeared  to 
move  the  setting  aside  of  the  judgment  and  execution;  and  this, 
because  of  allegations  affecting  the  merits,  was  held  to  be  a 
general  appearance,  curing  the  defect  of  the  publication  so  far 
as  he  was  concerned,  but  not  aifecting  the  rights  of  the  pur- 
chaser acquired  while  the  attachment  proceedings  were  yet 
void.  The  contest  was  between  the  jDurchasers:  one  buying 
under  the  execution  and  the  other  buying  of  the  attachment 
defendant  before  the  defect  of  the  proceedings  had  been  cured. 
It  was  a  case  of  ejectment  by  the  latter  against  the  former. 

The  judgment  in  tlie  attachment  suit  was  res  adjucUcata 
between  the  parties  to  it,  and  therefore  unassailable  by  collateral 
attack  so  far  as  the  personal  decree  was  involved;  but  the  res 
of  the  ancillary  proceeding  was  not  the  property  of  the  defend- 
ant and  the  judgment  must  be  understood  to  have  reference  to  it 


'LaAvless  t).  H;ickett,  1G  John.  145;  Id.  109;  Price  v.  Jackson,  6  Mass. 
Davis  ■O.Morris, 21  Barb.  153;  Johns-  2-42;  Gardner  v.  Hust,  2  Rich.  601; 
ton  1).  Fellerman,  13  How.  21;  Von  Walker  «.  Roberts,  4  Id.  561 ;  Bar- 
Beck  •!;.  Shiuuan,  Id  472;  Plummer  net's  Case,  1  Dall.  152;  Kennedy  «. 
V.  Plummer,  7  Id.  63;  Schoolcraft  v.  Baillie,  3  Yeates,  55,  cited. 
Thompson,  Id.  446;  Chappel «.  Chap-  ^  Anderson  v.  Coburn,  27  Wis.  558, 
pel,  2  Kern.  215;  Fairfield  ?;.  Bald-  re-aflirmiug  Whitney  v.  Brunette, 
win,  12  Pick.  388;  Denny  v,  AVard,  3  supra. 


ejectment:    AXTACUilENT-DEIiTOBS'    SALES,    ETC.  549 

only  as  Ms  property.  The  general  doctrines  that  a  judgment 
conclusive  between  the  parties  cannot  be  collaterally  impugned 
by  either  of  them,  except  for  fraud  or  want  of  jurisdiction, i 
and  that  a  valid  attachment,  a  valid  judgment  and  a  valid  sale 
give  the  purchaser  a  valid  titre,^  do  not  preclude  one  who  was 
not  a  party  to  the  proceedings,  and  who  did  not  acquire  his  title 
from  a  vendor  who  was  a  party  when  he  sold  (for  had  he  tlien 
been  a  party  the  purchaser  would  have  been  a  privy,)  from  suing 
to  recover  his  own  by  ejecting  a  wrongful  possessor.  The 
heirs  of  a  vendor  would  be  concluded,  as  his  privies,  should  he 
convey  his  interest  by  deed,  to  cure  supposed  defects  of  a  title 
from  judicial  j^roceedings.^ 

The  abuse  of  the  term  "jurisdiction"  has  been  a  frequent 
cause  of  remark  in  the  foregoing  pages;  but  perhaps  it  is 
never  more  mischievous  than  when  jurisdiction  in  the  principal 
suit  is  misapplied  with  reference  to  ancillary  attachments.  A 
court,  competent  to  try  the  principal  cause  when  the  defendant 
has  been  summoned  or  has  appeared,  cannot  rightfully  be  said 
to  have  jurisdiction  in  an  ancillary  proceeding  by  attachment 
in  which  the  statutory  requisites  have  been  disregarded.  Such 
requisites,  (except  summons,  and  publication  on  failure  of 
service,)  are  not  waived  by  his  general  appearance.  This  ^s 
apparent  wdien  liens  are  marshalled  —  the  creditor  who  has 
neglected  the  requisites  has  no  lien  to  interpose  against  junior 
attachei's  who  have  observed  them. 

A  court,  though  of  general  jurisdiction,  cannot  assume  that 
which  is  specially  conferred  npon  conditions,  though  it  may  be 
already  vested  with  power  over  the  defendant  in  an  action 
against  him  for  debt.     This  proposition  is  well  established  by 


>  Abbott  V.  Semple  35  111.  107;  N.  478;  Barnum  v.  Fitzpatrick,  11  Wis. 

A.   R  R  Co.  ^.  Combs,  13   lud.  490;  81;    Tallman   v.   McCarty,   Id.   401; 

Ulmer  V.    Hiatt,   4  G.   Greene,  439;  Upper  Miss.  Co.  t).  AVhittaker,  16  Wis. 

Clark  V.  Blackwell,  Id.  441;    Fee  v.  221;    Foot  v.  Stevens,  17  VV^nd.  483. 

Iron  Co.  13   Ohio  St.  oG3;  Geurmell  2  Mattingly  v.  Boyd,  20  How.  128; 

V.Rice,    13   Minn.  400;  Kipp «.  Ful-  Carney    v.    Emmons,    9    Wis.    114; 

lerton,   4   Minn.    473;    Fulbright  ■».  Lackey  ■«.  Seibert,  23  Mo.  85;  Cockey 

Cannefox,  30   Mo.  425;    Campbell  «.  «.  i\Iilue,  16  Md.  200. 

Moore.  3  Wis.  767;  Stonach  v.  Gless-  3  ]\[ason  v.  Tuttle,  75  Va.  105.    But 

ner,  4  Wis.  278;  Allen  v.  Lee,  6  Wis.  see  French  v.  Wade,  102  U.  S.  132. 


550  SUITS    RESULTANT    FKOM    ATTACHMENT. 

hundreds  of  decisions;  but  there  are  some  apj>arciitly  in  con- 
flict wliicli  need  to  be  reconciled  with  tlie  general  doctrine. 
DensHiore  v.  Matthews*  may  be  instanced  among  the  latter; 
but  the  extract  from  the  principal  authority  cited  by  the  court, 
after  enumerating  several  amendable  defects,  closes  with  the 
remark  that  such  errors  cannot  "deprive  the  court  of  the  jurisdic- 
tion acquired  by  the  writ  levied  upon  the  defendant's  property." 
Here  is  ground  for  reconciliation,  so  far  as  the  legal  dispute 
is  concerned.  Given,  that  a  court  has  jurisdiction  over  the 
property  by  the  levy  of  a  valid  writ,  and  over  the  defendant  by 
his  appearance  in  court,  the  conflict  is  at  an  end.  The  case 
had  been  decided  on  the  failure  of  the  creditor  to  swear  that 
his  debt  was  due  and  the  consequent  nullity  of  the  writ:  it 
was  reversed  on  the  argument  that  the  defects  in  the  attach- 
ment proceedings  were  only  such  as  the  personal  appearance 
of  the  debtor  had  cured.  The  facts  that  the  statute  required 
affidavit  of  the  maturity  of  the  debt,  and  that  such  affidavit 
was  not  made,  were  not  questioned;  but  the  court  treated  them 
as  curable  defects  —  of  which  it  is  not  proposed  to  comment  — 
and  re-affirmed  the  doctrine  of  the  principal  authority  cited 
that  curable  defects  cannot  deprive  a  court  of  jurisdiction  when 
it  has  been  acquired. 

Sec.  5.    Bond-Suits  against  Attaching  Officers. 

The  attaching  officer  may  be  sued  upon  his  l)ond  for  tahing 
thfe  property  of  an  owner  Avho  is  not  the  defendant  in  the  attach- 
ment suit.  The  bond  is  given  for  the  faithful  performance  of 
his  official  duties,  and  any  one  injured  by  a  breach  of  the  bond 
may  sue  upon  it  and  recover  the  damages  sustained.  The  bond 
required  of  marshals  of  the  United  States  is  for  the  faithful 
performance  of  official  duties  by  themselves  and  their  deputies; 
and  it  is  provided  by  statute  that  any  person  injured  by  a  breach 
of  the  conditions  of  the  bond  mny  sue  npon  it  in  his  own  nam^e 
and  for  his  own  use.  ^ 

The  State  statutes  are  nsually  similar;  and  M'herever  they 
are  so,  the  same  ri^jht  of  action  exists  accainst  the  sheriff  as 
aijainst  the  marshal  in  the  federal  courts, 

2 109  U.  S.  21G.  8U.  S.  Revised  Stat.   §  §  783,  784, 


BOND    SUITS    AGAINST    ATTACHING    OFFICERS.  DOL 

The  bond  being  official,  and  the  wrongful  seizure  of  a  tliiid 
person's  property  an  official  act,  (though  not  authorized  by  the 
attachment  writ  and  therefore  not  a  valid  seizure  but  a  mere 
act  of  trespass,)  the  officer's  sureties  are  also  liable  upon  tlie 
bund.  AVhether  the  attachnrent  be  lightful  or  wrongful,  it  is 
an  official  act,  and  tlie  obligation  of  the  sureties  is  that  their 
principal  shall  faithfully  perform  his  duties  and  that  they  will 
be  responsible  for  any  breach  of  duty  on  his  part  to  those  whom 
the  wrong-doing  may  concern.  It  is  definitely  decided  that 
the  attachment  of  property  by  the  marshal  under  the  writ  is 
an  official  act  whether  the  thing  seized  belongs  to  the  defendant 
or  to  another — (that  is,  whether  the  officer  is  under  tlie  protec- 
tion of  the  writ  or  not — whether  he  has  attached  what  he  was 
ordered  to  take  or  something  else — )  and  therefore,  if  wrong- 
ful, it  is  a  breach  of  the  conditions  of  the  bond  for  which  both 
himself  and  his  sureties  are  liable  in  damages  to  tiie  injured 
owner  of  the  property  w^-ongfully  attached.  ^ 

It  has  also  been  lield  that  a  seizure  by  a  sheriff,  under  such 
circumstances,  is  official  misconduct,  a  breach  of  the  conditions 
of  the  bond,  and  that  an  action  in  damages  lies  against  both 
liim  and  his  sureties;  and  the  reason  given  is  that  such  abuse 
of  the  M^'it  is  done  colore  officii,  and  is  not  merely  an  individual 
act  of  trespass.  3  The  case  is  not  as  though  the  officer  should 
attach  without  any  writ  at  all:  with  the  writ,  he  acts  officially 
though  it  be  no  warrant  for  taking  what  is  exempt  or  what 
belongs  to  an  owner  not  a  party;  without  it,  wrongful  takino- 
would  not  be  officially  done  and  the  sureties  would  be  irre- 
sponsible. ^ 

Tho  rule  that  sureties  of  sheriffs,  constables,  etc.  are  liable 
on  the  bond  for  the  tortuous  taking  under  a  writ  of  property 
not  authorized  by  the  writ  to  be  taken,  has  been  frequently 
recognized  by  the  State  courts,  though  they  have  not  been 
unanimous  on  the  subject.* 

1  Lammon  t).  Feusier,  111  U.  S.  17;  309;  Grinnell   v.   Phillips,    1   Mass. 
U.  S.  V.  Hine,  3  MacArthur,  27.  530. 

2  State  V.  Jennings,  4  Ohio  St.  418,  ^  For  the  rule:    Charles  v.  Haskius, 
423.  11  Iowa,    329;  Turner  v.  Killiau,  13 

3  City  of  Lowell  D.  Parker,  10  Met.  Neb.   580;  Holliman  v.   Carroll,   27 


552  SUITS    KESULTANT    FROM    ATTACHMENT. 

The  rule  applies  when  the  hiwl'iil  possession  of  lien-liolders 
is  wrongfully  disturbed  by  an  official  act  in  abuse  of  a  writ  of 
attachment.  Every  argument  in  its  favor  when  owners,  who 
are  not  parties,  are  dispossessed  is  equally  applicable  when  any 
lawful  possession  is  thus  molested.  The  Supreme  Court,  in 
deciding  Luttmion  v.  Fensier^  above  cited,  said  that  it  did  so 
'•  upon  the  weight  of  authority  as  well  as  upon  principle,"  yet 
it  had  but  recently  held  that  a  marshal  who  had  seized  goods 
in  the  possession  of  chattel  mortgagees  under  an  attachment 
W'rit  directed  against  the  property  of  the  defendant  was  not  liable 
to  suit  in  a  State  court,  as  a  trespasser,  to  the  persons  disturbed 
who  were  not  parties  to  the  suit.i  The  law  stated  in  the  Lam- 
mon  case:  "A  person  other  than  the  defendant  named  in  the 
writ,  whose  property  is  wrongfully  taken,  may  ir.deed  sue  the 
marshal,  like  any  wrong-doer,  in  an  action  of  trespass,  to  recover 
damages  for  the  wrongful  taking;  and  neither  the  official  char- 
acter of  the  marshal,  nor  the  writ  of  attachment,  affords  him 
any  defense  to  such  an  action,"  if  inconsistent  with  the  doctrine 
of  the  Densmore  case,  (last  cited,)  is  later;  and  it  must  govei-n. 

A  mortgagee  disturbed  in  his  possession  and  wronged  by  the 
sheriff,  has  his  action  therefor  even  though  he  has  been  cited, 
interrogated  and  discharged  as  trustee  or  garnishee  in  the  case. 
If  he  has  appeared  and  answered  that  he  holds  no  goods,  effects 
or  credits  of  the  defendant,  and  makes  no  mention  of  the  exist- 
ence of  the  mortgage — not  being-  interrogated  respecting  it — 
and  is  thereupon  discharged  without  objection  on  the  part  of 
the  plaintiff,  he  is  held  to   be  in  the  position  of  a  mortgagee 

Tex.  23;  Siate  ?;.  Fitzpatrick,  64  Mo.  43;  (same  title,   32   Id.   233;)  McEl- 

185;    Jewell  v.   Mills,    3  Bush,    62;  hauey  ».  Gilleland,  30  Ala.  183;  Gov- 

Greenlield  v.  "Wilson,  13   Gray,  384;  ernor  v.  Hancck,  2  Id.  728;  State  v. 

Carmack  t).  Commonwealth,   5  Bin-  Couover,  4  Dutch.  224;  State  ».  Long, 

ney,  184;  Brunott  v.  McKee,  6  Watts  8  Iredell,  415;  State  v.  Brown,  11  Id. 

&  S.  513;  Mayor  of  New  York   ».  141;  Brown  v.  Mosely,  11  Sniedes  & 

Sibberns,  3  Abb.    App.  266;    Cum-  M.  354;  People  v.  Schuyler,  5  Barb, 

ming  «.  Brown,  43  N.  Y.  514;  People  166  (reversed   in   4  N.  Y.  173;)  Ex 

V.  Lucas,  93   N.  Y.    585 ;  and  cases  parte  Reed,  4  Hill,  572  (overruled  in 

cited  ante  p.  188  note  4.  4  N.  Y.  173.) 

Af/ainst  tJie  ride:    Carey  v.   State,  '  Densmore  v.  Matthews,  109  U.  S- 

3i  Ind.  105;  Jenkins  v.  Lemonds,  29  216.     See  Ante,  pp.  77-8,  146-7;  o26. 
Id.  294;  Gerber  v.  Ackley,   37  Wia 


RErLEVIN    SUIT    AGAINST    THE    ATTACHING    OFFICER.  553 

who  lius  not  been  cited  in  the  garnishment  at  all,  and  he  may 
therefore  maintain  an  action  for  any  wrong  done  liim  by  a  sub- 
sequent sale  of  the  goods  and  payment  of  the  "oroceeds  to  the 
attaching  creditoi'.i  Discharge,  under  such  circumstances 
operates  as  a  dissolution  of  the  attachment, 2  and  this  is  given 
as  a  rea^^on  why  the  mortgagee  may  sue;  but  it  has  been  held 
that  if  he  is  defaulted  for  non-appearance  after  notice,  and  the 
garnishment  thereupon  sustained,  he  cannot  sustain  such  action 
against  the  sheriff.^  It  would  seem,  howe.-er,  that  if  the  inter- 
rogatories do  not  require  any  disclosure  respecting  a  mortgage, 
his  rights  as  a  mortgagee  should  not  be  denied  because  of  his 
remissness  as  a  o-arnishee. 

O 

See.  6.    Replevin  Suit  against  the  Attaching  Officer. 

It  is  held  that  an  action  of  replevin  will  not  lie  against  a 
marshal  for  taking  the  property  of  a  person  not  named  in  the 
writ  of  attachment  on  'mesne  process,  and  holding  it  in  his 
official  custody  under  color  of  such  wi'it,  in  any  other  court 
than  that  from  which  the  writ  was  issued  and  in  which  the 
property  is  detained.  Not  only  such  action  but  any  other  to 
recover  the  property  specifically,  is  held  illegal  if  brought  in 
any  court  but  that  which  has  control  of  the  res^  for  tlie  reason 
tliat' property,  seized  by  an  officer  acting  by  virtue  of  a  court's 
process,  is  to  be  deemed  in  the  court's  custody,  whether  right- 
fully attached  or  not.  Exception  is  made  in  favor  of  courts 
having  direct  supervisory  control,  or  superior  jurisdiction,  over 
the  tribunal  in  possession.  This  doctrine,  that  neither  replevin 
nor  any  other  action  to  regain  possession  will  lie  in  a  different 
court  from  that  in  which  the  attachment  writ  was  issued,  by 
the  person  wrongfully  dispossessed,  is  treated  by  the  Supreme 
Court  as  definitely  settled.* 

The  doctrine  is  extended  to  cases  in  which  wrongful  seizure 

J  GouldingB.  Hair,  133  Mass.   78;  *  Laramon  v.   Feusier,    111    U.   S. 

Boynton  v.  Warren,  99  Mass.  173.  19,  20,    citing   Buck   v.    Colbuth,    3 

2  Martina.    Bailej^   1  Allen,   881;  Wall.  334,341;    Freeman   v.  Howe, 

Hayward  v.  George,  13  Allen,  (16.  24  How.  450;  Krippendorf  v.  Hyde, 

2  Flanagan  v.  Cutler,  121  Mass.  96,  110  U.  S.  27G. 


554  SL'I.S    EI^SULTANT    FROM    ATTACHMENT. 

lias  been  made  under  valid  final  process.  Property  seized  in 
execution  cannot  be  replevied  by  one  wlio  is  not  a  party  to  the 
suit  and  who  is  the  owner  of  the  properly  levied  upon  as  that 
of  the  defendant,  unless  he  sue  in  tlie  court  which  has  control 
of  the  property.  The  same  argument  is  used  with  respect  to 
final  as  to  mesne  process.  It  is — that  conflict  of  jurisdiction 
Avould  ensue  should  the  action  of  replevin  in  a  diilcrent  court 
be  allowed.! 

Mr.  Justice  Nelson,  (approvingly  quoted  in  the  case  last 
cited,)  put  the  rule  distinctly  on  the  ground  that  jurisdiction 
over  the  same  property  could  not  exist  in  two  courts  at  the 
same  time;  that  if  a  State  court  has  it  over  a  res  in  an  attach- 
ment suit,  a  federal  court  cannot  acquire  it  by  action  of  its 
marshal,  for  the  purposes  of  a  general  proceeding  in  renij  and 
he  said,  for  the  Supreme  Court,  that  "  the  question  as  to  which 
authority  should  for  the  time  prevail"  does  "  not  depend  upon 
the  rights  of  the  respective  parties  to  the  property  seized, 
whether  the  one  was  [is]  paramount  to  the  other,  but  upon  the 
question  which  jurisdiction  [has]  first  attached  by  the  seizure 
and  custody  of  the  property  under  its  process. "^ 

The  court,  in  the  Covell  case,  com])aring  attachment  and 
execution,  say  that  "there  is  nothing  in  the  nature,  ofiice  or 
command  of  the  two  descriptions  of  process,  by  which,  so  far 
as  the  question  here  involved  is  concerned,  they  can  be  distin- 
guished. One  is  mesne  process  and  the  other  final;  but  in  the 
courts  of  the  United   States  the  attachment  cannot  be  used,  as 


1  Covell  «.  Heyman,  111  U.  S.  176,  erty  specifically  described,  but  corn- 
distinguishing  Buck  xi.  Colbath,  and  manding  a  levy,  as  in  case  of  _/i.  /«., 
affirming  the  other  three  cases  last  vipon  the  property  of  the  defendant, 
cited.  The  court  said,  through  Mr.  "Whether  that  dilference  is  material 
Justice  Matthews:  "The  case  of  is,  perhaps,  the  only  question  to  be 
Freeman  ».  Howe,  24  How.  450,  was  considered,  for  the  doctrine  of  that 
precisely  like  the  present  case  in  its  decision  is  too  firmly  established  in 
circumstances,  except  that  there  the  this  court  to  be  longer  open  to  ques- 
process  under  which  the  marshal  tion."  A  review  of  leading  decisions 
had  seized  and  held  the  property  follows,  and  the  conclusion  is  as 
replevied,  was  an  attachment  accord-  stated  in  the  text, 
ing  to  the  State  practice  of  Massa-  ^pi-egn^jju  y.  Howe,  supi-n,  citing 
chusetts,  being  mesne  process,  di-  Taylor  v.  Carryl,  20  How.  583. 
reeled,  however,    not  against   prop- 


EEPLEVIN    SUIT    AGAINST    THE    ATTACHING    OFFICER.  555 

in  tlie  practice  of  other  jurisdictions,  as  means  of  compelling 
the  appearance  of  the  defendant,  or  of  fonnding  jurisdiction  as 
a  proceeding  inremy  Can  any  difference  be  discovered  between 
an  ancillary  attachment  in  a  United  States  court  and  one  in  a 
State  court?  There  is  none.  In  l)oth,  the  jurisdiction  is  special; 
in  both,  the  remedy  is  statutory;  in  both,  the  property  consti- 
tuting tiie  res  must  be  in  court  or  there  is  no  jurisdiction  over 
it;  in  neither  can  there  be  any  compulsion  of  the  personal 
debtor  to  come  into  court  by  attaching  his  property;  in  neither 
can  there  be  any  "founding  of  jurisdiction"  by  seizure  only; 
in  both,  there  is  personal  jurisdiction  of  the  debtor  cited  or 
appearing;  but  when  jurisdiction  of  a  thing  or  a  person,  or 
both,  has  been  acquired  by  a  federal  court,  a  State  court  cannot 
divest  it — and  vice  versa,  as  this  case  conclusively  holds.  Eii 
2)assant,  it  seemed  that  the  reader  would  be  likely  to  notice  the 
obiter  relative  to  compelling  appearance,  and  that  dissent  should 
be  interposed;  but  nothing  further  is  needed  here  since  it  has 
been  suggested  elsewhere  that  attachment  as  distress  has  fallen 
into  disuse.  Such  attachment  is  without  statutory  warrant. 
The  doctrine  of  the  decision  did  not  seem  to  need  the  last  sen- 
tence above  quoted. 

It  is  merely  a  quasi  jurisdiction  that  a  court  obtains  by 
means  of  a  wrongful  seizure  under  a  valid  writ.  It  is  simply 
the  right  to  hold  possession  on  the  presumption  that  the  attach- 
ing officer  has  obeyed  the  writ  and  taken  the  property  of  the 
defendant.  6  This  presumption  justifies  the  court  in  resisting 
interference  from  any  other  court  except  one  liaving  supervisory 
powers.  It  is  for  the  court  thus  possessed  to  decide  whether 
the  attachment  was  lawful — not  for  some  other  tribunal  to 
do  so. 

The  profession  would  be  sadly  misled  by  the  decisions  in  the 
Lanimon  and  Covell  cases  should  it  understand  the  Supreme 
Court  to  say  that  the  jurisdiction  acc[iiired  by  the  wrongful  seizure 

^  French  v.  Reel,    61    Iowa,   143:  ment  under  which  the  officers  justify 

Held  that  there  is  a  presumption  in  emanated   from   a  court  authorized 

favor  of  the  due  execution  of  papers  to  issue  it,  its   sufficiency,  etc.   "will 

emanatini;  from  a  public  office,  and  be  presumed, 
upon  proof  that  the   writ  of  attach- 


556  SUITS    KESULTANT    FEOM    ATTACIIMKNT. 

of  another's  property  in  a  suit  against  the  defendant  is  snch  as 
to  justify  the  condemnation  of  the  property  after  the  presump- 
tion has  been  removed.  So  soon  as  the  court  in  possession  is 
legally  informed  that  its  possession  is  unlawful,  it  is  bound  to 
restore  the  property  to  its  owner.  If  upon  evidence,  or  upon 
the  admission  of  the  plaintiff,  or  upon  the  correction  of  the 
officer's  return,  the  fact  should  appear  tliat  the  pro})erty  belongs 
to  another,  or  that  the  right  of  possession  is  in  another,  there 
must  be  an  order  of  release.  It  would  be  unjust  to  the  authors 
of  the  opinions  in  the  two  cases  above  mentioned,  to  attribute 
to  them  the  assertion  that  tortuous  attachment  under  a  valid 
writ  gives  jurisdiction  in  the  sense  of  right  and  power  to  try 
the  cause. 

Would  not  the  owner  of  property  condemned  as  another's  in 
an  attachment  cause  in  which  the  owner  was  not  a  party  have 
the  undoubted  right  of  collateral  attack  upon  the  judgment? 
"Would  not  the  absence  of  jurisdiction  to  try  the  cause  plainly 
appear  upon  his  proving  that  the  property  was  his  when  it  was 
held  as  the  res  in  a  suit  against  the  attachmant  defendant,  and 
subsequently  sold  to  effectuate  a  judgmetit  rendered  in  such  suit? 
That  he  would  have  such  right,  and  that  absence  of  jurisdic- 
tion-to-try would  thus  appear,  conclusively  shows  that  the  only 
reason  why  other  courts  cannot  replevy  the  res  MTongfully  held 
in  the  attachment  case,  is  that  the  quasi  right  of  the  tribunal 
in  possession  is  to  determine  for  itself  whether  the  seizure  was 
lawful,  under  liability  of  having  its  determination  subsequently 
disregarded  if  it  should  proceed  further  in  the  cause  without 
statutory  authority. 

Mr.  Justice  Nelson  thus  understood  this  matter  when,  (as 
quoted  above,)  he  described  it  as  ''the  question  as  to  which 
authority  should  for  tlis  time  j[>r6va^7y"  id  est,  whether  the 
court  in  possession  or  the  one  seeking  to  replevy  should  decide 
upon  the  right  of  possession.  Jurisdiction  to  settle  this  'ques- 
tion is  what  the  court  has  upon  wrongful  seizure  as  an  official 
act  under  a  valid  writ. 

Thus  rightly  understanding  the  recent  deliverances  of  the 
Supreme  Court,  (in  accord  with  previous   ones,)   the  profession 


EEPLETIN    SUIT    AGAIXST    THE    ATTACnilS^G    OFEICEE.  557 

will  appreciate  the  utility  of  tlie  doctrine,  and  avoid  tlie  errors 
that  would  ensue  from  misconsti'uction. 

Is  tliere  then  no  remedy  for  the  dispossessed  owner,  bereft 
under  a  writ  not  directed  against  himself  or  his  property?  Suit 
upon  the  bond  is  not  always  an  adequate  one.  He  may  prefer 
the  specific  property  to  its  value  in  damages.  He  may  have 
been  robbed  of  an  heir-loom  which  is  priceless  in  his  eyes. 
His  right  is  to  get  the  thing  back,  whether  it  be  a  family  relic 
or  common  merchandise  easily  replaced  by  a  re-investment  of 
its  moneyed  value.     How  is  he  to  get  it? 

By  replevin  where  he  can  bring  the  action  without  clash  of 
jurisdiction:  in  the  court  wliich  has  custody  of  the  thing.  The 
Supreme  Court  has  pointed  out  the  methods  by  w'liich  the 
wronged  owner  can  obtain  restitution  when  the  property  is  in  a 
federal  court. i  In  a  pending  attachment  cause,  he  may  inter- 
vene and  claim  his  property.  He  may  institute  an  ancillary 
proceeding  in  the  case.^  He  may  sue  upon  the  marshal's 
official  bond,  or  sue  that  officer  for  trespass. 

Replevin  is  the  most  usual  resort  in  the  State  iSourts.  Con- 
flicts of  jusisdiction  would  occur  among  them  should  they  not 
forbear,  through  comity,  to  intermeddle  with  each  other.  Where 
there  is  no  statutory  regulation  on  the  subject,  comity  involves 
a  principle  which  should  govern  courts  of  concurrent  jurisdic- 
tion. '  It  is  law  everywhere  that  when  one  court  has  acquired 
jurisdiction  of  a  tlnng  or  a  person,  another  of  equal  or  inferior 
grade  cannot  divest  it;  nor  one  of  superior,  except  as  authorized 
by  law.  The  real  question  of  difhculty  has  been  whether  any 
jurisdiction  is  acquired  by  a  wrongful  seizure. 

The  law  in  general  terms  may  be  thus  stated  when  conflict 
of  jurisdiction  is  out  of  the  question:  When  the  property  of 
one  who  is  not  a  party  to  the  suit  is  attached  in  a  proceeding 
between  the  parties,  he  may  bring  action  against  the  sheriff; 
and  replevin  is  a  proper  remedy. ^ 

1  Ki'ippendorf  v.   Hyde,  110  U.  S.  Heagle  v.    Wheeland     64    111.  423, 

276.  (tliough   not   an     attachment    suit;) 

2/fZ.  Climer  v.   russell,    2   Blackf.    172; 

*  Samuel  v.   Agnew,   80  111.  553;  Daggett  ?).  Robins,  Id.  415;  Claik  v. 


558  SUITS    KESULTANT    FKOM    ATTACHMENT, 

In  the  case  first  above  cited,  the  court  first  iiirjuires:  "  Does  a 
jiuigmeiit  in  rem  in  attachment,  where  goods  belonginii^  to  a 
person  other  than  the  defendant  in  the  attachment,  and  upon 
which  there  is  no  express  prior  lien  in  favor  of  the  attaeliing 
creditor,  have  been  seized  by  tlic  sheriff,  give  the  sheriff  tlie 
riglit  to  hold  the  goods  against  the  owner;  or,  in  other  words, 
convert  what  was  before  a  tortuous  possession  into  a  lawful  one?" 
The  court  found  the  true  answer  in  the  limited  effect  of  such 
actions  against  property  as  herein  repeatedly  set  forth,  and  said, 
(following  previous  decisions,^)  that  "the  ordinary  proceeding 
by  attachment,  although  a. proceeding  in  rem,  has  no  such  con- 
clusive effect  as  a  decree  in  admiralty;  that  a  sale  under  it  does 
not  divest  any  liens  of  a  superior  degree,  nor  any  antecedent 
liens  of  the  same   decrree."     And    the    court  held  that  a  third 

o 

person  owning  the  attached  goods  might  recover  them  of  the 
sheriff. 

Wliile  proceedings  in  rem  by  attachment  are  of  limited 
character  under  nearly  all  the  statutes,  exceptions  have  some- 
times been  made  in  authorizincr  the  attachment  of  water-craft. 

o 

In  Missouri  it  was  held  that  the  condemnation  and  sale  of  a 
steamboat,  to  satisfy  a  lien  under  the  M^ater-craft  law  of  that 
State  enforced  by  attachment,  gave  the  purchaser  a  title  free 
from  all  otlier  liens,  2 

Under  a  statute  of  Indiana,  authorizing  all  lien-holders  to 
intervene  in  a  suit  for  wages,  supplies,  etc,  against  a  vessel,  it 
was  held  that  all  non-appearers  were  concluded  by  the  attach- 
ment judgment  against  a  steamboat.  Though  the  statute  was 
silent  with  respect  to  subsequent  suits  by  lien-holders  against  a 
vessel  condemned  and  sold  at  the  suit  of  the  first  attacher,  the 
court  held  that  the  admiralty  practice  was  applicable;  that  they 
could  not  molest  the  purchaser  who  acquired  under  the  judg- 
ment and  sale,  and    that   their  only    remedy  was    by  personal 

Skinner,  20   Johns.  465;  Thompson  >  Germain  v.  Steam  Tug   Indiana, 

r.  Butler,  14  Id.  84;  Garner  ■».  Camp-  11   111.     535;     Propeller     Hilton    v. 

hell,    15    Id.    401;  Judd    a  Fox,   9  Miller,  63  111.  230. 

CoAven,   259;  Wells  v.   Baldwin,   61  -  Steamhoat  Raritaa  v.   Smith,    10 

Ind.  205.  Mo.  527, 


REPLEVIN    SUIT    AGAINST    THE    ATTACHING    OFFICEK.  559 

action  against  their  personal  debtor,  i  Subseqnently  it  was 
held  that  such  a  chiim  being  exclusively  enforcible  in  admiralty 
as  a  maritime  lien,  the  State  court  could  not  entertain  such  a 
general  proceeding  in  rem;  but  that  such  general  proceeding 
"for  buildino;,  fittiiur  out  and  constructintr  "  a  steamer  is  coirniz- 
able  in  such  court.  In  such  a  case,  the  court  said:  "We  are 
not  aM-are  that  such  a  claim  can  be  enlbi-ced  in  admiralty.  "\Ve 
understand  quite  the  contrary  pi'oposition  to  be  adjudged  in 
The  Peojple's  Ferry  v.  Beers,  20  How.  393,  and  Roach  v\ 
Chapman,  22  Id.  129.  It  does  not  follow,  because  the  statute 
has  authorized  a  proceeding  in  rem  to  enforce  the  lien  which  it 
gives  to  the  builder  of  a  vessel  that  the  suit  to  enforce  it  must 
be  in  admiralty.  The  jurisdiction  of  the  federal  courts  cannot 
be  thus  enlarged  by  a  State  statute.  It  was  so  expressly  held 
in  Roach  v.  Chapman,  supra.  !N^or  can  we  perceive  anything 
in  our  legislation  giving  the  builder  a  lien  which  is  in  contra- 
vention of  the  constitution  or  laws  of  the  United  States.''^ 

The  constitutional  right  of  States  to  resort  to  proceedings  at 
law  of  this  character,  such  as  will  preclude  all  persons  after 
general  notice  folio v/ed  by  judgment  against  the  res,  seems 
entirely  free  from  doubt.  It  has  not  been  delegated  exclusively 
to  the  general  government,  though  like  proceedings  in  admi- 
ralty have  been  thus  delegated.  The  right  of  a  State  legisla- 
ture to  authorize  such  a  proceeding  at  law  was  strongly  asserted 
by  the  Supreme  Court  of  Massachusetts  through  Chief  Justice 
Shaw. 3  It  was  so  held  with  reference  to  the  forfeiture  of  thino-s 
proceeded  against  as  guilty  or  offending.  Statutes  of  States 
authorizing  such,    proceedings  against  such  property  have  been 


'  The  Steamboat  Rover  v.  Stiles,  5  cases  where  a  lien  is  claimed  by  the 

Blackford,  484.  builders  of  a  vessel,  for   work  done 

2  Wj'att  v.  Stuckley,   2ft    Ind.   279.  and  materials  furnished   in  its   con- 

(This  case  was  followed  in  Stiuton  v.  struction.       *      *      The    Steamboat 

Steamboat  Roberts,  34  Ind.  448,  and  Orleans  v.  Phcebus,  11  Pet.  175;  The 

(same  title)  46  Ind.  476.     In  the  last  Belfast,   7  Wall.    624;  Amy  v.   The 

the  court  said:    "It  is  well  settled  Supervisors,    11  Wall.    136;  Leon  v. 

that  the    admiralty    jurisdiction   of  Galceran,  Id.  185.     *     *.") 

the  United  States  does  not  extend  to  »  Fisher  v.  McGirr,  1  Gray,  28. 


560  SUITS    RESULTANT    FROM    ATTACHMENT. 

sustained  by  Supreme  Courts  of  States  and  that  of  tJie  United 
States.  1 

Attacliment  proceedings,  being  never  prosecuted  for  forfeit- 
ure but  always  to  enforce  a  lien,  and  usually  both  to  create  and 
enforce  it,  ought  not  to  be  of  general  character,  with  notice  to 
conclude  all  persons  and  destroy  unassorted  liens  and  rights  to 
property;  and  the  exceptional  statutes  with  regard  to  water- 
craft,  above  noticed,  have  properly  had  little  following.  There 
is  not  the  same  justification  for  such  statutes  as  there  is  fur 
admiralty  law  under  which  liens  are  enforced  by  like  pro- 
ceedings. 

Sec.  7.    Subsequent  Suits  Against  Garnishees. 

The  attachment  debtor  cannot  destroy  or  impair  any  riidit 
which  the  attachment-creditor  has  obtained,  by  suing  the  garn- 
ishee after  final  judgment  sustaining  the  garnishmoit;  nor  can 
he  thus  relieve  the  latter  from  liability  to  the  garnishor.^  His 
acceptance  of  voluntary  payment  at  this  stage  would  not  relieve. 
lie  therefore  cannot  successfully  sue  upon  the  same  debt  which 
has  been  adjudicated  by  the  garnishment  judgment,  nor  for  the 
same  pro])erty  thus  adjudicated,  when  payment  or  delivery  have 
followed.  3  Neither  the  attachment-debtor  nor  the  garnishee 
can  attack  such  judgment  collaterally,  if  the  court  had  jurisdic- 
tion, though  the  court  may  have  been  only  such  de  facto  and 
the  proceedings  irregular,*   and  the  notice  somewhat  defective.^ 

1  Beer  Co.  v.  Massachusetts,  97  TJ.  223;  Adams  «.  Filer,  7  Wis.  300; 
S.  25;  Bartemeyer  f).  Iowa,  18  Wall.  Ross  n.  Pitts,  39  Ala.  GOG;  Gunn  y. 
129;  Commonwealth  «.  Intoxicating  Howell,  35  Id.  144;  Allen  v. 
Liquors,  128  Mass.  72;  Our  House,  Watt,  79  111.  284;  Anderson  ». 
No.  2 ».  State,  4  Greene,  172;  Santo  Young,  21  Pa.  St.  443;  Ladd  y. 
•y.  State,  2  Iowa,  165.  See  Stale  v.  Jacobs,  64  Me.  347;  Brown  v.  Dud- 
Wheeler,  25  Ct.  290;  Commonwealth  ley,  33  N.  H.  511. 

«.  Matthews,  129  Mass.  485,  487.  *  Oppenheim  ■».    Pittsburgh,    Cin. 

2  El  I  is  v.    Gofduow,    40   Vt    237;  &  St.  Louis  R.  R.  Co.  85  Ind.  472. 
Web.ster    v.    Adams,    58    Me.     317;  ^  gtout    «.    Woods,    79    Ind.    108; 
Hooton  «.  Gamage,  11  Allen,  354.  Reed  v.  Whitton,  78  Id.    579;  McAl- 

8  Greeriman  ».  Fox,  54    Ind.  267;  pine  ■».  Sweetzer,   76  Id.    78;  Hume 

Ohio  &  Miss.  R.  R.  Co.  v.  Alvey,  43  «.  Conduitt,  Id.  598;  Muncy  v.  Joest, 

Ind.  180;  Barton  v.  Albright,  29  Ind.  74  Id.  409;  Mavity  v.  Eastbridge,  67 

489;  Schoppenhaust  «.  Bollman,  21  Id.  211;  Presler  «.  Turner,  57  Id.  56; 

Ind.  2b0;  Shetler  v.  Thomas,  16  Ind.  Smith  t.  Dixon,  58  Iowa,  444. 


SUBSEQUENT    SUITS    AGAINST    GARNISHEES.  5G1 

Onlj  executed  garnishment  judgments  can  be  interposed 
against  suits  for  the  same  debt,  after  the  time  for  execution  has 
passed.  AVlien  the  garnishee  has  not  satisfied,  and  is  no  longer, 
required  to  satisfy,  such  judgment,  there  is  no  obstacle  to  the 
subsequent  suit. 

Yoluntary  payment  to  the  attacliing  creditor  will  not  screen 
the  garnishee  from  his  debt  to  his  own  creditor.*  And  it  may 
be  deemed  voluntary,  should  he  have  legal  ground  for  resisting 
the  execution,  yet  fail  to  use  it — especially  if  the  principal 
debtor  is  absent.  So,  too,  when  he  pays  without  a  bond  from 
tlie  plaintiff  to  restore  to  the  defendant  upon  his  appearance 
within  a  year  and  a  day,  when  the  law  retains  that  feature  of 
foreign  attachment.^ 

Paying  when  not  obliged  to  pay  is  voluntary,  and  therefore 
no  protection. 3  Payment  into  court  before  execution,  under 
an  order  authorized  by  statute,  is  not  voluntary.  Payment 
may  always  be  pleaded  in  protection  when  made  under  order  of 
a  court  having  jurisdiction  to  render  it.*  If  the  garnishee  has 
contested  the  authority  of  the  court  and  been  overruled,  he 
cannot  be  required  to  pay  a  second  time  on  the  assumption 
that  his  obedience  to  the  order  was  voluntary.  Error  in  the 
3xercise  of  jurisdiction  will  not  expose  the  garnishee,  who  pays, 
to  repayment,  though  the  main  judgment  be  reversed  for  erroi- 
after  he  has  been  compelled  to  pay. 

When  the  debtor  was  a  ward  and  the  garnishee  his  guardian, 
notice  on  the  latter  was  held  to  give  all  the  information  to  the 
former  which  the  law  required,  so  that  he  was  presumed  to  be 
cognizant  of  the  trustee  suit,  and  therefore  could  not  deny  the 
jurisdiction  as  void  for  want  of  notice  and  could  not  sue  the 
garnishee  subsequent  to  judgment.^ 

It  has  been  held,  tliough  not  universally,  that  judgment 
against  the  garnishee  is  a  bar  to  a  subsequent  suit  by  the  attach- 
ment-debtor, whether  there  has  been  payment  or  delivery  there- 

'  Stnrtevant  v.  Robinson,  18  Pick.  '  Yociira  v.  White,  36  Iowa,  288. 

175;  Home  ]\Intual  Ins.  Co.  ».  Gam-  *  Stimpson  v.  Maiden,    109   Mass. 

ble,  14  Mo.  407.  313;  Haynes  i).  Gates,    2    Head,  598. 

2  Meyers  «.  Ulrioh,  1  Bin.  25;  Mc-  ^  Woods  ?;.  Milford    Savings   Insti 

Pbail  V.  Ilyat^,  29  Iowa,  137.  tutiou,  58  N.  H.  184; 

36  ' 


502  SUITS    RESULTANT    FROM    ATTACHMENT. 

under  or  not;  but  it  is  a  bar  only  at  asttigewhen  the  p^arni.sliee 
is  yet  liable  upon  the  jiulfrinent  though  he  has  not  satisfied  it. 
Obviously,  if  the  princijjal  defendant  has  appealed  tlie  attach- 
ment case  and  the  judgment  against  himself  is  reversed,  that 
against  the  garnishee,  though  not  ajipealed,  would  cease  to  be  a 
bar  to  a  subsequent  action.  The  true  rule  is  that  the  garnishee 
may  plead  in  bar  what  he  has  paid  or  is  bound  to  pay.  ^  Obvi- 
ously he  cannot  thus  plead  in  bar  against  any  sum  due  the 
attachment  debtor  in  excess  of  what  he  has  paid  or  is  obliged 
to  pay  to  another  under  the  garnishment  judgment. 2  ]N'or  can 
he  so  plead  unless  the  debt  paid  or  to  be  paid  to  another  is 
identical  with  that  sued  upon  by  the  attachment  debtor.  ^ 

If  the  principal  defendant  is  in  court,  it  is  his  business  to 
object  to  irregularities;  and  he  cannot  afterwards  avail  himself 
of  his  own  laches  when  suing  the  garnishee.  But,  under  the 
plea  of  payment,  the  garnishee  must  show  legal  payment;  tlie 
judgment  he  pleads  must  have  been  one  that  obliged  him  to 
pay.  It  must  have  been  a  valid  judgment.^  The  judgment 
may  be  impugned  for  fraudulent  collusion  betM'een  the  attach- 
ing creditor  and  the  garnishee.  ^  It  cannot  be  disregarded 
because  it  was  rendered  by  a  foreign  tribunal. ^ 

It  is  no  payment  that  can  be  pleaded  in  bar  of  a  subsequent 
suit,  W'hen  the  garnishee  has  merely  credited  tlie  garnishor  upon 
his  books  and  debited  the  attachmient-debtor  to  the  same  amount, 
after  he  has  been  charged  in  a  garnishment  proceeding.''  It  is 
not  enough  to  bar  a  subsequent  suit  by  his  immediate  creditor 
for  the  garnishee  to  plead  the  order  charging  him,  or  even  to 

1  See,  on  this  subject,  McAllister  v.  ^  Seward  «.  Heflin,  20  Vt.  144. 
Brooks,  22  Me.  80;  Sessions  v.   Stev-  ^  Bait.  &  Ohio  R.  l\.  Co.  v.  May,  25 
ens,  1  Fla.  283;  Brown®.  Somerville,  Ohio  St.  347;  ]\Iorgau  b.  Neville  74 
8  Md.  444;    Cheongwo  v.   Jones,  3  Pa.  St.  52;  Noble®.   Thompson   Oil 
Wash.  C.  C.  359.  Co.  69  Id.  409;  Gnnn  v.   Howell,  35 

2  Tarns  V:  Bullitt,  35  Pa.  St.  308;  Ala.  144;  Wigwall  v.  Union  C.  &  M. 
Baxter  v.  Vincent,  (S  Vt.  614;  Barton  Co.  37  Iowa,  120;  Barrow  v.  West, 
B.Albright,  29  lud.  489.  23  Pick.    270;  Meriam  v.   Rundlett, 

3  Harmon   v.   Birchard,    8   Blackf.  13  Id.  511. 

418;  Sangster®.  Butt,  17  Ind.  354.  'Wetter    v.    Rucker,    1    Brod.  & 

♦Ohio  i&c.R.  R.  Co.  ®.  Alvey,  43      Biug.  491. 
Ind.  180. 


SUBSEQUENT    SUITS    AGAINST    GAKNISIIEES.  5G3 

plead  final  jndg'ment  against  him  in  the  garnishment,  after  the 
main  suit  ]ias  been  completed  and  the  judgment  against  the' 
attachtnent  debtor  executed;  there  must  also  be  a  plea  showing 
that  the  o-arnishment  iudcrment  has  been  executed  or  is  still  to 
be  executed,  as  before  remarked;  and  therefore,  both  judgments 
— that  against  the  garnishee  and  that  against  the  principtil 
debtor  are  necessary  to  constitute  a  bar.  For  the  former  is 
merely  hypothetical,  however  positively  it  may  be  written;  it 
is  dependent  upon  the  main  decree,  and  must  stand  or  fall 
with  it 

It  has  been  held  that  the  discharge  of  the  garnishee  may  be 
pleaded  in  bar  to  an  action  by  the  garnishor  for  injury  sustained 
by  reason  of  a  false  and  fraudulent  answer  resulting  in  the  dis- 
charge. ^  There  are  reasons,  however,  against  such  holding. 
The  limited  scope  of  the  examination  under  the  statutes  of  many 
States;  the  rule  under  others  that  the  trustee  must  be  dis- 
charged when  he  does  not  affirmatively  show  liability,  without 
having  his  disclosure  tested  by  traverse;  the  j^ractice,  under  all 
the  statutes, precluding  the  investigation  of  complicated  accounts 
and  unliquidated  obligations,  suggest  many  circumstances  under 
which  a  dishonest  garnishee  may  wrong  the  garnishor  by  his 
answers,  with  perfect  impunity  so  far  as  the  attachment  pro- 
ceedings are  concerned.  For  every  wrong  there  should  be  a 
remedy;  and  the  attaching  creditor  ought  to  have  his  subse- 
quent action  against  the  garnishee  when  he  has  no  other  means 
of  redress. 

The  garnishee  cannot  plead  judgment  and  payment  in  bar  to 
a  suit  brought  by  one  who  was  not  a  party  or  privy  to  the 
attachment. 2  The  reason  is  the  same  as  that  applicable  to  any 
personal  Judgment — the  garnishment  being  always  personal  in 
its  relation  to  the  garnishee.  The  fact  that  it  is  otherwise  in 
other  relations  cannot  affect  the  plea  in  bar  to  the  suit  brought 
by  one  not  a  party  to  the  former  proceedings. 

»Lyford  v.   Demervitt,    32  N.  H.  Hyde,   37   Id.   114;    Funkhouser  v. 

234.  How.  24   Id.  44;  Wise   v.   Hilton,  4 

2  Cooper  V.   McClun,  16  111.   435;  Me.  435;  Miller  t).  Mcliain,  10  Yerg. 

Lawrence  v.  Lane,  9  Id.  354;  Wilson  245. 
V.  Murphy,   45  Mo.   409 ;  Dobbins  v. 


504  SUITS    RESULTANT    FROM    ATTACHMENT. 

Discharge  in  one  proceeding  is  no  bar  to  another  bj  a  difTer- 
ent  creditor,  though  the  property  or  credit  of  the  same  defend- 
ant be  the  subject  of  the  inquiry,  i  But  the  rule  is  otherwise 
A\hen  there  has  been  final  judgment  and  payment;  manifestly, 
a  second  attaching  creditor  could  not  then  subject  the  garnishee 
to  a  repayment  of  the  same  debt. 2  And  this  is  true,  though 
the  first  attachment  and  garnishment  may  have  been  irregular.  ^ 
Exception  to  the  rule  has  been  recognized.  The  maimer  of  a 
promissory  note,  after  having  paid  it  to  the  creditor  of  the 
payee  under  an  order  charging  him  as  garnishee  of  that  ci'editor, 
was  not  able  to  bar  a  subsequent  suit  against  him  on  the  note. 
There  had  been  a  transfer  to  the  first  indorsee,  which  the  garn- 
ishor had  attached  for  fraud.  The  second  indorsee  instituted 
tlie  subsequent  suit;  and  it  was  held  that  it  could  be  maintained ; 
that  though  the  plaintiff  had  had  notice  of  tlie  garnishment 
proceeding,  yet  his  rights  were  not  thereby  affected  as  he  was 
not  a  party  to  the  proceeding.'* 

Judgment  and  payment  constitute  no  bar  to  a  subsequent 
suit  by  an  assignee  against  the  garnishee  if  the  latter  knew  of 
the  assignment  and  failed  to  disclose  it  to  the  court,  and  thei-e- 
after  continued  to  withhold  the  fact  till  final  judgment  and  pay- 
ment followed  the  charging  order.  ^  To  cut  the  garnishee  off 
from  the  benefit  of  the  plea,  there  must  have  been  laches  on  his 
part  sufficient  to  amount  to  an  estoppel.  Withholding  the 
fact  in  fraud,  and  in  collusion  with  the  attaching  creditor  or  the 
defendant,  would  and  should  always  deprive  him  of  the  benefit 
of  the  plea;  but  it  is  held  that  failure  to  disclose  is  fatal  to  him, 
though  there  may  have  been  no  fraud  or  collusion.^  If  how- 
ever the  assignee  himself  has    misled  the  garnishee  into  such 

1  Breading  v.  Seigworth,  29  Pa.  St.  583 ;  Prescott  v.  Hull,  17  Johns.  284; 
396.  Smoot  «.  Esliiva,  23  Ala.  659 ;  Seward 

2  Watkins  t).  Cason,  46  Ga  4-14.  -o.    Heflin,    20    Vt.    144;     Marsh   v. 

3  Howard  v.  McLaughlin,  98  Pa.  Davis,  24  Id.  363;  Dawson  v.  Jones, 
St.  410.     See  McDonald   v.   Simcox,  2  Houston,  (Del.)  412. 

Id.  619.  "  Field  v.  McKinney,  60  Miss.  763; 

*  Holland  D.  Smit,  11  Mo.   App.   6.  Smith    v.   Blatchford,    2    Ind.    184; 

^  Casey  B.  Davis,   100  Mass.    124;  Kimbrough  v.   Davis,   34  Ala.   583; 

Greentree  «.   Rosenstock,   61   N.  Y.  Foster  v.  White,  9  Port.  221. 


SUITS    BETWEEN    VARIOUS    PARTIES.  5G5 

entanglement,  tlie  latter  is  entitled  to  relief  from  the  injustice 
of  subjection  to  second  payment,  i 

If  there  is  no  fault  on  the  part  of  the  garnishee;  if  he  has 
made  disclosure  of  the  assignment  at  any  time  before  he  was 
required  to  pay  into  conrt,  no-  action  will  lie  against  him  by 
the  assignee.  The  order  charging  him  may  have  been  errone- 
ous but  he  is 'not  to  suffer  for  the  court's  fault. ^ 

When  the  maker  of  a  note  is  garnished,  and  final  judo-ment 
is  rendered  against  him  before  he  has  had  notice  of  the  assign- 
ment of  the  note,  he  may  plead  the  judgment  in  defense  to  a 
suit  by  the  assignee.* 

Sec.  8.    Suits  between  Various  Parties, 

Action  lies  for  damages  suffered  by  reason  of  illegal  attach- 
ments, and  the  suit  may  be  brought  on  the  attachment  bond 
against  principal  and  sureties,  or  there  may  be  a  common-law 
action.  This  subject,  with  respect  to  both  actual  and  exemplary 
damages,  has  been  already  treated.'* 

Action  lies  against  the  ofHcer  who  attaches  the  debtor's  prop- 
erty without  lawful  authority  to  do  so.  5  Such  suit  is  usually 
for  trespass;  and  if  the  wrong  complained  of  is  charged  to 
have  heen  done  under  color  of  ofhcial  function — under  a  writ 


'  Wentworth  v.  Weymouth,  11  Me.  v.  Thomas,  16  Id.  223;  Sckoppenhast 

44(5;  McAllister  «.  Brooks,  22  Id.  80;  t).  Bollman,  21  Id.   280;  Richardson 

Wood  V.   Partridge,  11    Mass.  488;  v.  Hickman,    22    lu.    244;     King  v. 

Perkins®.  Parker,  1  Id.    117;  Com-  Vance,  46  Id.  246.     In  the  last  case 

stock     V.      Faruham,      3     Id.     96;  it  was  held  that  the   maker  maybe 

Foster  i;.  Sinkler,   4  Id.   450;  Dix  «.  garnished  before  the  note  is  due  and 

Cobb,  Id.   508;   Jones   v.  Witter,  13  that  the  judgment  is  payable  when 

Id.  304;  Warren -p.  Copelin,   4  Met.  the  note  becomes    due,    overruling 

(Mass.)  594.  the  case  of  the  Junction  R.  R.  Co.  v. 

2  Cottle  V.  American  Screw  Co.  13  Cleneay,  13  Ind.  161. 
R.  I.   627 ;  Canaday   ®.   Detrick,   63  *  Ante,  Ch.  XIV. 

Ind.  485.  ^Bentley   v.   White,   54    Vt.   564; 

3  Covert ».  Nelson,  8  Blackf.  265;  Marqueze  v.  Southeimer,  59  Miss. 
Cornwell  v.  Hungate,  1  Ind.  156;  480;  Patton  v.  Garrett,  37  Ark.  605; 
Rooker  v.  Daniels,  5  Id.  519;  Shetler  Swan  v.  McCracken,  7  Lea,  626. 


566  SUITS    RESULTANT    FKOM    ATTACriMKNT. 

however  invalid,  l)otli  the  officer  and  the  sureties  on  his 
official  bond  may  be  sued  together,  i 

The  sheriff  is  liable  to  suit  for  injury  done  through  his  fotilt 
to  the  attachment-defendant's  property  while  it  is  in  his  official 
custody,  though  it  may  have  been  lawfully  detained.  That 
defendant  is  the  injured  party  when  such  wrong  is  done, 
whether  he  sain  the  attachment  suit  or  not.  He  is  entitled  to 
have  his  attached  property  well  preserved  and  cared  for,  so  that 
it  will  sell  for  its  full  value  and  pay  as  much  of  his  debt  as 
possible,  should  judgment  go  against  him;  and  he  is  entitled  to 
have  it  returned  in  as  good  condition  as  it  was  in  when  seized, 
in  case  the  result  of  the  attachment  suit  should  bfe  favorable  to 
him.  If  the  attaching  creditor  should  withdraw  his  suit  or 
abandon  the  attachment,  the  right  of  the  alleged  debtor  to  be 
reimbursed  by  the  sheriff  for  loss  caused  by  fault  of  that  officer 
in  seizing  and  keeping  the  property  under  the  writ,  would  be 
equally  clear.  2 

The  officer  may  sue  upon  the  indemnity  bond  given  to 
secure  him  in  attaching,  if  he  has  been  mulct  in  damages  for 
executing  the  writ  upon  property  pointed  out  by  the  attaching 
creditor.  He  may  call  the  creditor  as  warrantor  into  the  suit 
for  damages  for  executing  the  writ  under  such  circumstances. 
This  topic  has  already  come  under  notice. ^ 

Action  lies  against  the  officer  for  not  attaching  when  it  is  his 
duty  to  attach.'*  He  is  liable  for  taking  too  little  when  he 
may  secure  enough  to  cover  the  debt  sued  upon.^  He  is  liable 
for  unnecessary  delay  when  the  attaching  creditor  is  thereby 
injured. 8  He  is  responsible  if  liis  return  is  so  defective  in 
the   description    of   the   property    attached   as   to    render    the 

»  Lammon  v.  Feusier,  111  U.  S.  17;  »  Ante,  pp.  147,  148. 

State  V.   Jennings,   4   Ohio   St.  418,  *  Raulett  y.  Blodgett,  17  K  H.304; 

423;  U.  S.  «.  Hine,  3  IMacAithur,  27;  Ball   ■».  Badger,  6   Id.  405;  Marshall 

Becker  v.   Dunham,   27     Minn.  32;  t.  Hosmer,  4  Mass.  63. 

Carpenter  v.   Dresser,   72    Me.   377.  ^Ransom  v.  Halcott,  18  Barb.  56; 

See   authorities,   ante,   pp.   187,  188,  Howes  v.  Spicer,  23  Vt.  508. 

and,  pro  and  con,  p.  551,  552.  ^  Whitney  ».   Butterfield,  13   Cal. 

2  Beckei  0.  Bailies,  44  Ct.  1G7.  835. 


SUITS    BETWEEN    VARIOUS    PARTIES.  5G7 

attacliraent  nugatory.*     The  same  is  true  for  injury  caused  by 
any  wrong  done  by  the  return.  2 

The  sheriff  may  be  sued  by  the  attaching  creditor  for  not 
exercising  due  diligence  in  the  keeping  of  attached  property  if 
he  thus  causes  injury  to  the  latter. ^  Should  he  deliver  the 
property  to  a  junior  attacher  he  would  become  liable  to  the 
senior.* 

"When  a  second  attachment  has  been  laid  in  the  sheriff's 
bands,  he  cannot  deliver  the  attached  property  to  the  defendant 
by  direction  of  the  first  attacher  without  rendering  himself 
liable  in  damages  to  the  second  attacher.  The  dismissal  of  the 
attachment  and  of  the  suit  itself  by  the  first  attaching  creditor 
can  have  no  eflect  upon  the  rights  of  the  second  creditor, 
acquired  before  the  release. ^ 

The  attaching  officer  is  bound  to  replevy  attached  property 
taken  from  his  custody,  and  action  lies  against  him  for  failure 
to  do  so.*  In  New  York,  the  sheriff  must  sue  the  garnishee, 
for  the  sura  attached  in  the  hands  of  the  latter,  when  it  has  not 
been  paid  over,  without  awaiting  the  determination  of  the 
action  or  for  an  order  of  court.' 

The  sheriff  would  be  accountable  should  he  pay  over  to  the 
attaching  creditor  funds  deposited  under  order  of  court  by  the 
garnishee  in  case  the  principal  suit  should  be  decided  in  favor 
of  ,the  defendant  on  appeal  operating  as  a  supersedeas.  He 
would  be  accountable  either  to  the  garnishee  or  to  the  defend- 
ant—  to  whichever  might  be  rightfully  entitled  to  the  posses- 
sion of  the  fund  in  any  case.  And  for  any  action  of  the  sheriff 
by  which  the  garnishee  should  be  wronged,  it  is  obvious  that 

1  Pond  V.  Baker,  55  Vt.  403,  and  against  the  defendant  in  attachment, 
other  cases  cited  ante,  p.  256.  and   an   order  for  the  sale  of  the  at- 

2  Haynes  v.  Small,  22  Me.  14;  Saw-  tached  property,  after  the  tirst  attacli- 
yer  «.  Curtis,  2  Ashmead,  127.  er  had    "dismissed  his  action  and 

3  Becker  v.  Bailies,  44  Ct.  167,  and  attachment." 

other  cases  cited  a/ii!e  p.  280,  n.  1.  ^  Wood  v.   Bodine,  39  N.  Y.  Sup.' 

*Cordman  «.  Malone,  6J  Ala.  570;  Comt,  354. 

Scarborough  «.  Malone,  67  Id.  570.  ''  Davidson  v.  Chatham  Nat.  Bank, 

5  State  ex.  rel.  v.  Baldwin,  10  Bis-  39  N.  Y  Sap.  Court,  138;  Code  Civil 

sel,  105.     In  this  case,  the  second  at-  Prac.  §  §  655,  675. 
tacher  proceeded  to  get  judgment 


5G8  SUITS    RESULTANT    FROM    ATTACHMENT. 

an  action  would  lie.  It  would  be  rather  tedious  tlian  profitable 
to  suggest  the  various  circumstances  under  which  such  suits 
may  arise. 

If  mortgaged  chattels  are  attached  and  taken  from  the 
possession  of  the  mortgagee  by  a  sheriff  in  executing 
a  writ  of  attachment,  the  act  is  unlawful,  since  there  is  tlms  a 
disturbance  of  rightful  possession;  but  the  mortgagee  can 
recover  from  the  sheriff  only  what  is  due  him  on  the  mortgage.  ^ 
Tlie  right  of  the  mortgagor  to  redeem  the  cliattels,  in  such 
case,  might  be  made  the  subject  of  seizure,  as  that  of  an  incor- 
poreal thing.  2 

"Whoever  is  injured  through  fault  of  the  attaching  officer 
may  recover  for  the  injury:  it  may  be  sufficient  here  to  note 
but  a  few  circumstances  in  which  actions  lie  for  such  cause.  It 
has  been  held  that  if  the  sheriff,  in  executing  mesne  process 
against  one  partner  for  his  personal  debt,  should  attach  and 
remove  partnersliip  goods  and  exclude  the  firm  from  possession, 
he  would  be  liable  to  an  action  of  ti-espass  by  the  partnership.  ^ 
Should  he  attach  property  which  does  not  belong  to  the 
defendant,  the  owner  may  recover  it  with  damages.'*  Should 
any  lawful  possessor,  though  not  the  owner,  be  disturbed  in  his 
custody  by  an  officer  making  an  attachment  of  it  as  the  property 
of  another  person,  such  possessor  may  sue  the  officer  for 
trespass. 5      It  is  trespass  to  attach  an3'thing  legally  exempt.  ^ 

If  an  owner,  not  an  original  party  to  the  attachment  proceed- 
ings, should  intervene  and  claim  the  property  attaclied  therein, 
and  should  fail  to  sustain  his  claim,  he  could  not  afterwards 
maintain  replevin  against  the  officer  for  the  same  property.' 
Eut  it  is  held  that  the  giving  of  an  indemnity  bond  does  not 
deprive  an  intervening  claimant  of  his  right  of  action  on  the 
sheriff's  bond.s 

The  purchaser  of  land  cannot  maintain  an  action  against  the 


*  Becker  v.  Dunham,  29   Minn.  33.  and  other  cases  cited  ajite,  p.  186,  n. 

2  Id.  1,  2;  and  p.  159,  n.  2. 

3  Sanborn  v.  Royce,  132  Mass.  594.  «  Ante,  p.  187,  n.  2. 

*  Connor   v.   Loni^^   104   U.  S.  229.  ^  Bray  v.  Saaman,  13  Neb.  519. 
Ante,  p.  184,  n.  2,  4,  5;  p.  185,  u.  1,  3,  *  Lewis  v.  Mausiield,  78  Ky.  4G0. 

6  Williams  v.  Morgan,  50  Wis.  548, 


SUITS    BETWEEN    VARIOUS    PARTIES.  5G9 

sheriff  to  remove  a  pending  attachment  of  the  property  as  that 
of  the  vendor,  on  the  ground  that  it  is  a  cloud  upon  the  title; 
for  such  attachment  cannot  affect  the  rights  of  the  purchaser. ^ 
Suits  against  sureties  resulting  from  attachment  ])roceediiigs 
are  very  common;  but  in  sonie  States  —  as  in  Arkansas  —  the 
sureties  on  a  dissolution  bond  are  deemed  2)arties  to  the 
attachment  suit  and  subje'ct  to  summary  judgment  without 
service  of  notice  or  process  on  them. 3 


1  Wilson  V.   Kelly,  38  N.  Y.  Sup.  2  Fletcher  v.  Menkin,  37  Ark.  206; 

Court,  75.  Gantt's  Dig.  406. 


570  THE    KEMEDY    KEVIEWED. 


CHAPTER    XVII. 

THE    REMEDY    REVIEWED. 

§  1.     Property  Liability.  §  5.    The   Lien   Matured  by  Jndg- 

2.  Reason  for  Attachment  Laws  ment. 

Found  in  Property  Liability  G.     The  Lieu  by  Ganiishmeut. 

3.  Creation  of  the  Lieu.  .  7.    Dill'ereuces  Reconciled. 

4.  The  Lien  Hypothetical. 

See.  1.    Property   Liability. 

The  jtistifieation  of  the  law  of  attachment  and  garnishment 
rests  on  the  liability  of  property  for  the  debts  of  its  owner. 
The  reasonableness  of  the  remedy  is  found  in  this  faet.  What 
the  debtor  legally  owns  he  does  not  morally  have  a  right  to 
own  if  his  debt  is  as  great  as  the  value  of  his  property;  and, 
if  it  is  less,  he  can  morally  retain  only  such  proportion  as  the 
excess  of  that  value  over  the  debt  bears  to  the  debt.  If  he  has 
bought  an  article  yet  has  not  paid  the  price,  he  ought  not  to 
retain  both  the  property  and  the  price;  and,  if  he  owes  a  debt 
which  is  not  the  price  of  some  article  bought,  he  ought  not  to 
continue  to  owe  the  debt  and  keep  the  article,  if  that  property 
is  his  only  means  of  paying.  It  is  therefore  true  that  all  the 
property  of  the  debtor,  (exemption  laws  aside.)  ought  to  be 
liable  for  his  debts. 

The  law  of  attachment,  founded  on  this  primary  proposition,  is 
available  to  the  creditor  upon  certain  conditions.  It  is  thus 
seen  to  be  not  unjust  and  repugnant  to  the  spirit  of  jurispru- 
dence, nor  is  it  harsh  and  extraordinary  except  in  its  incipiency 
when  property-indebtedness  has  not  been  established  by  evi- 
dence contradictorily  adduced. 

When  debt  is  created,  credit  is  really  given  in  consideration 
of  the  obligor's  property,  or  his  ability  to  pay.  Credit  to  a 
small  amount  may  be  given  in  consideration  of  the  debtor's  per- 


PKOPEKTT    LIABILITY.  571 

sonal  ability  to  earn  wages,  and  confidence  in  his  honesty  to 
apply  tlieni  to  the  payment  of  his  liabilities;  but  this  is  excep- 
tional to  the  general  rule  that  the  creditor  looks  to  the  pi-operty 
of  his  debtor  for  the  security  of  his  chiiin.  This  geueral  rule 
is  almost  without  exception  when  credit  is  given  in  large  sums. 

Since  the  general  abolishment  of  imprisonment  for  debt,  the 
Law  offers  no  remedy  against  the  personal  debtor  considered  as 
distinct  from  his  property.  The  creditor  may  trust  his  impe- 
cunious friend,  believing  in  his  honesty,  or  charitably  designing 
to  aid  him  at  all  hazards,  be  the  amount  great  or  small;  but, 
in  the  general  course  of  business,  in  wiiich  payment  is  expected 
to  follow  the  making  of  obligations,  the  creditor  looks  to  the 
property  of  his  debtor,  rather  than  to  the  man;  or  to  the  pi"op- 
erty  of  the  surety,  rather  than  to  the  surety  himself,  for  the 
satisfaction  of  the  debt  due  him. 

Property  obligation  may  therefore  be  said  to  underlie  the 
personal  obligation  of  the  debtor,  even  when  no  express  lien 
or  mortgage  is  put  npon  it.  In  the  absence  of  such  express 
lien,  the  property  obligation  is  not  legal,  it  is  true,  but  the 
moral  obligation  of  the  debtor  to  devote  his  property  to  the 
payment  of  his  debts,  forms  a  proper  basis  for  the  legishitor  to 
build  a  lien  upon  the  property  when  the  circumstances  are  shown 
to  be  such  that  the  creditor's  successful  recourse  is  against  the 
property  alone. 

To  enable  us  to  comprehend  perfectly  the  existence  of  prop- 
erty obligation  to  pay  debt,  and  to  separate  the  idea  from  that  of 
the  personal  obligation  of  the  debtor,  take  the  case  of  a  succes- 
sion before  its  acceptance  by  the  heirs.  Whatever  debts  the 
decedent  owed  rest  against  the  succession  only.  Not  only 
those  secured  by  express  liens  but  ordinary  debts  look  to  the 
succession  only  for  satisfaction.  There  is  no  personal  debtor. 
The  dead  man  owes  nothing;  his  heirs  owe  nothing  when  they 
have  not  obligated  themselves  by  unconditionally  accepting  the 
succession. 

Leaving  express  liens  out  of  the  question;  taking  a  succes- 
sion which  is  burdened  by  none,  let  us  consider  ordinary  debts 
onl3^  Before  the  debtor's  death,  there  is  personal  indebtedness 
and   property   indebtedness:     after    his  death  only   the    latter 


572  THE    EKMEDY    REVIEWED. 

remains.  No  one  article  of  tlie  property  is  specially  indebted 
to  the  ordinary  creditor:  all  the  property  is  generally  indebted 
to  him.  It  cannot  legally  escape  the  liability.  The  heir,  the 
administrator,  the  court,  the  State  itself  cannot  rightfully  deprive 
the  creditor  of  his  recourse  against  it.  It  is  therefore  said  by 
jurists  that  the  ordinary  creditor  has  a  general  lien  on  the  prop- 
erty of  a  decedent's  estate.  Such  lien  is  silent,  unrecorded, 
inferior  to  specilic  liens  and  not  susceptible  of  special  vindica- 
tion like  a  mortgage;  it  rausi  be  enforced  in  a  general  way  by 
a  creditor  without  excluding  the  claims  of  other  creditors;  in 
short,  such  general  lien  is  only  the  pre-existent  property  obliga- 
tion made  manifest  by  the  death  of  the  debtor. 

When  the  heir  accepts  the  succession  which  falls  to  him, 
making  no  conditions,  putting  himself  fully  into  the  shoes  of 
the  late  owner,  he  becomes  bound  for  all  the  obligations  of  the 
succession.  lie  is  not  merely  bound  so  far  as  the  assets  are 
sutiicient  to  pay  the  debts  but  beyond  to  the  full  amount  of  the 
decedent's  indebtedness.  Wherever  this  rule  prevails,  there  is 
both  personal  and  property  indebtedness  after  the  unconditional 
acceptance  of  the  succession  by  the  heir;  but  is  the  property 
indebtedness  any  the  less?  Does  the  creditor  lose  his  hold 
upon  it  by  reason  of  such  acceptance?  Does  the  general  lieu 
become  less  efficient? 

Clearly,  the  acceptance  by  the  heir,  either  with  or  without 
creditors,  cannot  possibly  affect  the  creditor's  rights  against  the 
property  of  the  succession.  It  is  certain  that  the  general  lien 
must  continue  until  satisfied.  Here  then  is  a  plain  case  of  a 
silent,  general,  unrecorded  lien  existing  against  property,  in 
favor  of  the  ordinary  creditor,  while  the  heir  owes  the  debt  as 
a  personal  obligation.  If  this  is  true,  wherein  does  the  case 
differ  from  that  existing  before  the  debtor's  death?  When  he 
was  the  personal  obligor,  may  there  not  have  been  property 
obligation  also  in  favor  of  the  ordinary  creditor,  in  the  nature 
of  a  general  lien,  though  silent  and  unrecorded?  Legally  speak- 
incT,  there  was  not:  morally  speaking,  there  was,  in  a  sense  suffi- 
cient to  justify  the  legislator  in  giving  the  creditor  a  remedy 
against  it  when  tlie  personal  debtor  was  absent,  had  absconded, 
or  could  not  be  reached  by  ordinary  process,  for  any  reason. 


REASON  FOK  ATTACHMENT  LAWS,  ETC.  5T3 

The  deatli  of  the  debtor  forms  no  ground  for  the  attachment 
of  the  projjerty  of  his  succession,  since  the  hiw  provides  for  tlie 
administration  of  his  estate  and  for  a  kind  of  general  attacli- 
ment  of  it  for  the  benefit  of  all  creditors  and  for  the  adjustment 
of  the  rights  of  all  persons  in  any  way  concerned,  whether  as 
creditors,  debtors,  heirs  or  legatees.  The  case  of  succession 
property  is  instanced  here  for  no  other  purpose  than  to  illus- 
trate the  principle  that  there  is  such  a  thing  as  property  obliga- 
tion recognized  by  the  law,  independent  of  personal  obligation; 
that  the  former  may  exigt  without  the  latter;  and  that,  when  the 
latter  is  resupplied,  the  former  remains  unaffected. 

The  civil  death  of  the  debtor — his  insolvency — is  not  a  uni- 
versal ground  for  attachment,  since  the  State,  by  insolvency  or 
bankrupt  laws,  may  provide  for  a  general  administration  of  the 
debtor's  assets,  recognize  a  general  lien  in  favor  of  ordinary 
creditors,  and  prevent  the  necessity  for  giviiig  to  any  individual 
creditor  the  right  to  proceed  by  a  seizure  preliminary  to  suit. 
Where  such  a  law  exists,  and  where  the  debtor  may  procure  a 
discharge,  what  is  the  position  of  his  property,  voluntarily  or 
forcedly  surrendered,  after  the  date  of  his  discharge?  It  owes, 
but  he  does  not.  The  property  obligation  exists  but  the  per- 
sonal obligation  has  ceased  in  a  legal  sense,  though  it  morally 
continues.  Is  this  propei-ty  obligation  created  by  the  law? 
No;  it  is  merely  recognized  by  the  law.  It  remains  when  the 
personal  obligation  has  legally  ceased. 


Sec.  2.    Eeason  for  Attachment  Laws  Found  in  Property 
Liability. 

Is  it  not  now  evident,  that  the  legislator's  authorization  of 
an  ordinary  creditor  to  proceed  against  property  as  if  he  were  a 
lien-holder,  rests  on  the  idea  of  property  indebtedness;  and  on 
the  idea  of  a  latent,  silent,  general  lien,  when  the  ground  of 
attachment  is  the  insolvency  of  the  debtor?  The  justification 
of  such  an  attachment  law  is  the  same  as  that  of  a  bankrupt 
law;  for,  though  the  first  authorizes  special  proceedings  by  any 
one  creditor  upon  his  showing  by  his  affidavit,  (or  otherwise  as 
the  statutory  requirement  may  be,)  that  the  debtor  is  in  insol- 


574:  THE    REMEDY    EE VIEWED. 

vent  circumstances,  while  the  hitter  provides  for  general  pro- 
ceedings concerning  all  the  creditors,  yet  botli  would  he  uncon- 
stitutional and  repugnant  to  the  spirit  of  jurisprudence;  (would 
he  indeed  like  taking  the  property  of  one  man  and  giving  it  to 
another  without  right,)  but  for  the  underlying  fact  of  property 
liability,  and  the  pre-existence  of  such  a  state  of  things  as  fully 
to  warrant  the  creation  of  the  general  lien. 

Of  many  creditors,  only  one  may  believe  that  their  common 
debtor  is  insolvent,  and  he  only  may  make  the  prescribed  affida- 
vit and  proceed  upon  his  quasi  lien  till  he  shall  have  perfected 
it  by  Judgment,  and  shall  have  given  himself  a  better  position 
than  the  other  creditors;  but  the  warrant  of  the  legislator  in 
giving  him  the  statute  right  thus  to  proceed,  seems  not  differ- 
ent from  that  by  which  the  creditors  altogether  are  authorized 
to  proceed  against  the  bankrupt. 

The  principal  ground  upon  which  writs  of  attachment  and 
garnishment  are  authorized,  is  the  debtor's  non-residence, 
absence,  concealment  of  himself,  or  his  absconding,  or  his  avoid- 
ance of  personal  service  in  some  way.  All  of  these  may  be 
reduced  to  one:  the  inadequacy  of  the  creditor's  ordinary 
remedy  against  his  personal  debtor,  leaving  that  against  the 
property  of  the  debtor  as  the  only  available  recourse.  Since  a 
debtor  who  cannot  be  reached  by. process  though  his  2)ropertv  is 
seizable,  is  like  a  decedent  who  has  left  property,  it  would  seem 
that  there  is,  under  such  circumstances,  nothing  harsh  or  extra- 
ordinary in  the  authorization  of  procedure  directly  against  the 
property  as  though  in  vindication  of  a  lien. 

"What  would  be  tlie  position  of  an  ordinary  creditor,  who 
cannot  bring  a  personal  suit  against  his  debtor,  if  he  were  not 
enabled  by  statute  to  proceed  against  the  delator'  property?  It 
would  be  one  of  great  hardship.  On  the  other  hand,  is  any 
injustic.  done  to  the  debtor,  who  eludes  personal  citation,  or 
who  lives  where  personal  citation  cannot  reach  him,  if  his 
property  is  made  to  pay  his  debts?  It  would  seem  that  justice 
is  on  the  side  of  attacliments,  whether  we  contemplate  the  credi- 
tor's or  debtor's  position.  And  the  proceeding  tigainst  the 
debtor's  property,  when  he  is  absent,  or  is  concealed,  or  has 
absconded,  or  is  in  any  way  not  reachable  by  process,  is  no  mo)"e 


REASON    FOE    ATTACHMENT    LAAVS,    ETC.  573 

linrsli  tlian  ^vhen  there  is  general  administration  of  bis  estate, 
and  payment  of  indebtedness,  after  his  deatli. 

Tbere  is  a  striking  parallel  between  procedure  against  prop- 
erty after  either  the  natural  or  civil  death  of  a  debtor,  and  attach- 
ment procednre  where  the  first  attacher  lias  no  priority  of  lien, 
as  in  Indiana,  for  instance.  The  probate  or  the  insolvency  pro- 
ceeding having  been  instituted,  any  ordinary  creditor  may  come 
forward,  assert  and  prove  his  claim,  take  judgment  and  get  paid 
wholly  or  in  part,  according  to  the.  capacity  of  the  property  to 
pay  all  creditors  of  his  rank,  after  satisfying  superior  liens;  so, 
the  attachment  proceeding  having  been  instituted  by  one  ordi- 
nary creditor,  other  ordinary  creditors  may  assert  and  establish 
their  claims,  and  all  be  paid  alike  J9r6>  rata^  after  mortgagees  and 
other  holders  of  recorded  liens  have  been  paid.  The  parallel  is 
perfect,  so  far  as  the  subject  bears  upon  the  justilication  of 
legislation  authorizing  ordinary  creditors  to  attach  their  debtors' 
property.  There  ?.vq.  minor  differences  between  procedure  after 
the  natural  or  civil  death,  and  procedure  after  the  absconding? 
etc.,  of  tiie  debtor;  but,  in  both,  the  underlying  principle  is 
that  the  property  abandoned  by  the  debtor  is  liable  when  he  can- 
not be  reached;  and  that  it  is  a  common  pledge  of  the  credi- 
tors. 

"When  the  first  attacher  has  preference  over  later  attaching 
creditors,  the  principle  is  not  materially  different,  thougl  the 
parallel  above  suggested  is  less  applicable.  Statutes  giving  such 
preference,  require  a  bond  of  the  attacher,  (there  are  some 
exceptions,)  in  wliich  he,  with  his  surety,  undertakes  to  make 
good  any  wrongs  he  may  do  his  lebtor  by  proceeding,  under  his 
own  showing,  to  attach  the  latter's  property  as  if  there  were  a 
lien  already  upon  it  to  be  vindicated.  They  require  such  bond 
and  security  in  consideration  of  the  harshness  and  injustice  of 
tne  remedy  authorized  in  case  the  plaintiff  should  abuse  it  by 
a  false  showing  and  an  unwarrantable  seizure.  When  any 
creditor  is  apprised  of  the  debtor'to  situation,  and  is  willing  to 
swear  to  such  facts  and  execute  such  bond  as  the  statute 
requires,  other  creditors  may  not  be  ready  to  take  the  responsi- 
bility of  doing  so.  Whether  that  is  because  they  do  not  know 
of  the  debtor's  situation,  or  because  of  some  other  reason,  they 


576  THE    KEMEDY    EEVIEWED. 

await  the  first  attaclier's  action.  He  bears  the  brunt  of  tho 
battle,  and  the  tardy  creditors  ought  not  to  complain  because 
they  cannot  successfully  claim  equal  rank. 

In  a  legal  point  of  view,  his  right  to  preference,  or  rather  the 
righteousTiess  of  the  statute  which  gives  him  preference,  seems 
plain.  When  by  actual  attachment  of  property  he  has  secured 
it  by  a  lien  susceptible  of  being  perfected  by  judgment,  it  is 
just  that  his  lien  should  not  be  rendered  less  effectual  by  reason 
of  later  attachments  being  made. 

Junior  attachers  have  to  swear  and  give  bond  as  well  as  the 
senior.  Their  claims,  before  the  first  attachment,  stand  on  the 
same  footing  with  his.  All  are  then  ordinary  creditors;  anyone 
of  ;hem  may  become  the  first  attacher.  There  is  therefore  no 
invidious  legislation  when  the  first  lien  is  given  to  the  first 
attacher.  And,  when  it  is  once  lodged  upon  any  specific  prop- 
erty, (though  yet  inchoate,)  there  would  seem  to  be  no  reason 
why  a  later  attacher  of  the  same  thing  should  weaken  the  hold 
of  the  first  lien-holder  by  being  allowed  to  lodge  another  lien 
upon  the  property  of  equal  rank  with  the  first. 

However,  whether  a  State  favors  the  vigilant  and  first  seiz- 
ing creditor  over  the  others  or  not,  it  could  not  justly  authorize 
the  creation  of  any  lien  at  all  but  for  the  general  liability  of  all 
jiroperty  for  the  debts  of  its  owner,  existing  in  the  absence  of 
any  legislation  at  all.  Granted  that  such  general  liability  exists, 
the  giving  of  the  remedy  by  attachment  is  easily  vindicable; 
and  the  harshness  of  it  is  reduced  to  the  case  where  attachment 
is  wrongfully  sued  out;  and  that  harshness  is  mollified  and 
almost  neutralized  by  the  requirement  of  a  bond  and  security 
from  the  attaching  creditor  in  favor  of  the  possibly  injured 
attachment  debtor. 

It  is  frequently  said  that  the  remedy  by  attachment  is  ° 
harsh  one,  unknown  to  the  common  law,  and  is  altogether  out  or 
the  ordinary  course  of  litigation.  It  is  harsh  when  unneces- 
sarily resorted  to,  though  the  creditor  may  proceed  within  the 
law.  It  is  always  harsh  in  its  precipitancy,  considering  that 
there  is  no  pre-existing  lien  to  warrant  a  sudden  attack  upon  the 
property  of  the  debtor.  It  is,  in  this  res])ect,  an  extraordinary 
proceeding,  owing   its  legality  to  statutory  authorization  only. 


CKEATION    OF    THE    LIEN.  577 

The  presumption  being  in  favor  of  the  debtor;  the  onus 
being  on  the  creditor  to  establish  the  debt  and  also  some  statu- 
tory ground  for  preliminary  seizure,  it  seems  a  hard  case  that 
upon  an  ex  parte  showing,  the  plaintiff  may  proceed  against  the 
property  of  the  defendant  as  that  of  an  abscondent,  absentee, 
defrauder  and  the  like.  Notwithstanding  the  bond  or  under- 
taking, by  Avhich  the  plaintifi'  is  required  to  secure  the  defend- 
ant from  possible  injury,  the  remedy  is  still  a  hard  one,  and 
there  is  much  reason  for  the  frequent  comments  of  the  courts 
upon  it  as  such,  when  holding  plaintiffs  to  a  strict  compliance 
with  statutes. 


Sec.  3.    Creation    of    the    Lien:    Attachment  Creates   a 
Specific  Lien. 

The  relation  of  the  plaintiff  in  an  attachment  suit  to  the 
defendant  being  simply  tb.a'  of  an  ordinary  creditor  to  an  ordi- 
nary debtor,  at  the  date  of  the  institution  of  the  action,  he  has 
then  no  spscific  lien  whatever  upon  the  property  of  his  debtor, 
whether  it  be  in  the  hands  of  that  debtor  or  in  those  of  a  third 
person.  The  indebtedness  which  he  alleges  has  reference  to  no 
property  in  particular.  All  the  property  of  the  debtor  stands 
liable  to  execution  by  any  creditor  who  may  obtain  judgment 
against  its  owmer.  The  creditor,  when  he  institutes  his  action, 
occupies  no  better  position  than  any  other  ordinary  creditor. 
He  has  not  even  a  silent  lien  upon  any  article  of  tlie  defendant's 
property.  He  has  no  special  right  against  credits  due  by  others 
to  the  defendant,  or  against  property,  held  by  others,  belonging 
to  the  defendant.  Should  he  sue  upon  his  claim  by  an  ordinary 
action,  no  lien  would  arise  before  judgment  obtained.  Should 
other  creditors  sue  the  same  debtor  simultaneously,  they  would 
all  remain  merely  ordinary  creditors  till  they  obtained  judo-- 
ment.  They  could  then  execute  their  judgments  upon  any 
property  of  the  defendant,  and  their  liens  would  be  judgment- 
liens  to  be  marshalled  according  to  the  rank  of  the  judgments 
and  seizures  thereunder.  The  liens  would  have  no  reference 
whatever  to  the  respective  dates  of  the  institution  of  the  suits 
or  of  the  service  upon  the  defendant. 
37 


578  THE    KEMEDY    REVIEWED. 

How  arises  the  difference  between  sneh  ordinary  suits  and 
attachment  suits,  with  respect  to  the  lien?  In  both  classes,  the 
plaintiffs  are  without  preference  right  at  the  date  of  the  institu- 
tion of  the  suits:  liow  does  a  lien  arise  before  judgment  in  the 
latter  class?  How  can  an  ordinary  creditor,  by  his  own  act, 
give  his  claim  a  higher  privilege  than  it  had  when  first  created 
by  contract  with  the  defendant? 

The  law  makes  the  provision.  It  gives  the  remedy  by  attach- 
ment of  property  in  the  hands  of  the  debtor,  or  garnishment  of 
it  in  the  hands  of  a  third  person,  when  the  debtor  by  abscond- 
ing, concealing  himself,  putting  himself  beyond  the  jurisdiction, 
fraudulently  converting  property,  or  other  acts  made  grounds 
for  attachment  by  statute,  renders  extraordinary  proceedings 
necessary  to  the  protection  of  the  ordinary  creditor's  rights. 
So  long  as  the  creditor's  position  is  not  affected,  nor  his  right 
to  collect  his  dues  r)y  ordinary  methods  put  in  jeopardy, 
by  the  changed  condition  of  things  caused  by  the  debtor  him- 
self, the  extraordinary  remedy  is  not  at  his  command.  No  State 
could  constitutionally  step  between  two  contracting  parties,  such 
as  the  creditor  and  the  debtor,  and  create  a  lien  in  favor  of  the 
former,  where  no  lien  had  been  created  by  the  contract,  or  by 
operation  of  law  uj^on  the  contract,  so  long  as  the  state  of  things 
existing  when  the  relation  of  creditor  and  debtor  first  arose  should 
remain  unimpaired. 

The  power  of  the  State  to  provide  the  extraordinary  remedy 
of  attachment  is  not  arbitrary,  but  depends,  for  its  exercise, 
upon  the  happening  of  such  a  state  of  things  that  a  creditor 
mio;ht  readily  be  wrontred  Avere  he  not  allowed  such  remedv. 
It  is  to  subserve  the  ends  of  justice  that  the  State  steps  in 
between  the  creditor  and  debtor,  and  gives  the  former  a  lien 
upon  such  property  of  the  latter  as  he  may  secure  whenever  it 
is  likely  that  such  property  would  otherwise  not  be  forthcoming 
at  the  time  of  the  judgment  and  execution.  As  it  is  a  power 
exercised  in  behalf  of  all,  and  not  of  specified  persons;  as  all 
persons  who  give  credit  understand  that,  in  case  of  the  debtor's 
absconding  or  otherwise  creating  occasion  for  the  exercise  of 
the  unusual  remedy  against  him,  the  power  may  be  inv^oked; 
as  the  debtor  himself,  when   he  contracts  a  debt,  must  under- 


CREATION    OF    THE    LIEN.  579 

stand  this,  there  can  be  no  objection  to  the  law  for  want  of 
general  application.  It  is  really  the  debtor  who  calls  the  lien 
into  existence  by  his  departure  from  the  State  or  other  acts  or 
coiuh'tions  a-iving-  o-rounds  for  attachment.  The  creditor,  see- 
ing  such  a  state  of  things,  makes  the  law  aj>plicable  to  such  a 
case.  He  makes  his  preliminary  proof  of  the  necessary 
grounds,  executes  his  bond  so  as  to  hold  himself  accountable  if 
in  the  wrong,  and  then  seizes  before  judgment  such  property  of 
the  defendant  as  would  ordinarily   be   seizable  after  judgment. 

When,  howev-er,  the  State  says  that  an  agent,  instead  of 
delivering  property  to  his  principal  to  whom  it  belongs,  shall 
hold  it  against  that  principal's  will,  to  be  delivered  to  another 
at  some  future  date  in  cfise  a  judgment  should  be  rendered 
ao-ainst  the  principal;  or  when  the  State  says  that  a  debtor  shall 
not  pay  his  debt  to  his  creditor  to  whom  it  is  due  but  shall  with- 
hold payment  till  it  shall  be  ascertained  whether  that  creditor 
is  not  indebted  to  some  other  person,  and  shall  pay  to  that 
other  person  if  so  ordered  by  a  court;  and  when  the  State  says 
that  meanwhile  such  otlier  person,  a  stranger  to  the  debtor,  shall 
have  a  lien  upon  the  sum  thus  due,  it  would  seem  an  unwar- 
rantable interference  of  the  government  with  private  affairs,  if 
we  considered  ordy  the  agent  and  his  principal.  But  when  we 
take  the  case  of  the  principal's  creditor  into  consideration; 
when  we  think  of  the  attaching  plaintifi''s  position,  in  connec- 
tion with  that  of  the  attachment  defendant  and  the  garnishee, 
we  see  that  the  ends  of  justice  are  promoted  between  the  plain- 
tiif  and  defendant  by  the  garnishment  process,  and  that  the 
garnishee  has  nothing  to  complain  of,  since  it  matters  nothing 
to  him  to  whom  he  pays,  so  he  gets  acquittance  from  his  liability. 
The  creation  of  the  lien,  therefore,  does  injustice  to  no  one,  if 
the  state  of  facts  is  as  alleged  by  the  attachment  plaintiff. 

The  garnishee  can  have  no  cause  to  complain  of  the  creation 
of  a  lien  upon  the  property  in  his  possession,  in  favor  of  the 
attaching  creditor  of  the  defendant,  if  the  fact  really  is  as 
stated  by  the  attaching  creditor;  if  the  property  held  by  the 
garnishee  really  belongs  to  the  defendant  so  as  ordinarily  to 
be  subject  to  execution  after  judgment;  if  the  circumstances 
are  such  that  he  is  bound  to  answer  that  he  holds  the  property 


5  so  THE    KKMEDY    REVIP.'WED. 

Imt  does  not  own  if,  and  lins  no  claim  npon  it.  Tlie  law  does 
liim  no  harm  hy  creating  a  lien  n])on  it  in  favor  of  the  phiititifF, 
and  iinallj  reqniring  him  to  deliver  the  property  to  the  officer 
instead  of  delivering  it  to  his  principal  as  he  would  otherwise 
be  bound  to  do.  So,  if  he  is  indebted  to  the  defendant,  and  tlie 
debt  is  certain,  free  from  all  contingencies,  and  he  is  ready  so  to 
acknowledge,  he  is  not  wronged  by  the  preference  which  the 
attaching  creditor  secures,  in  the  nature  of  a  lien  upon  it,  which, 
when  matured  by  judgment,  is  followed  by  an  order  for  its  pay- 
ment into  court  for  the  satisfaction  of  the  judgment,  instead  of 
payment  to  the  original  creditor  of  the  garnishee,  to  whom  it 
otherwise  would  have  been  paid.  The  garnishee  is  not  wronged. 
He  w^ould  have  to  pay  at  all  events.  The  law  merely  steps 
between  him  and  the  original  payee,  and  bids  him  pay  to  the 
payee's  creditor. 

Sec.   4.    The    Lien    Hypothetical. 

Were  the  lien  thus  created  an  absolute  one,  the  State  would 
transcend  its  rightful  powers  by  creating  it;  for,  upon  the  plain- 
tiif 's  allegations  and  ex  parte  affidavit,  while  yet  the  defendant 
is  unheard,  the  creation  of  an  absolute  lien  would  be  the  inter- 
polation of  a  burdensome  addition  to  the  contract  by  which  the 
ordinary  debt  was  created,  without  the  consent  of  one  of  the 
contracting  parties.  A  State  can  no  more  do  this  than  it  can 
create  a  contract  between  two  persons  without  the  concurrence 
of  the  minds  of  those  persons. 

The  lien  is  contingent.  It  cannot  become  certain  till  the 
happening  of  a  very  important  subsequent  event:  the  affirmance 
of  the  plaintiff's  allegations  after  proof  made,  by  a  judgment 
of  court.  The  lien  often  and  properly  has  been  styled  inchoate,  i 
but  contingent  is  the  better  qualifying  word.  It  depends  upon 
the  judicial  finding  of  the  state  of  facts  which  authorize  the 
lien.  If  matured  by  judgment,  the  lien  becomes  perfect; 
rather,  it  now  has  the  character  of  a  perfect   specific  lien  from 

»  Cooke  V.  Cooke,  43  Md.  533;  Fuller  v.  Hasbrouck,  46  Mich.  78. 


THE    LIEN    HYPOTHETICAL.  5S1 

the  date  of  its  contingent  creation. *  If  not  matured  by  judg- 
ment; if  the  attachment  be  dissolved  on  any  ground;  if  tliere 
be  final  judgment  for  defendant,  then  there  never  was  any  lieu 
in  favor  of  the  plaintiif  upon  the  property  attached  in  the 
hands  of  the  garnishee  or  in  those  of  the  defendant.  If  the 
plaintifl*  takes  a  personal  judgment  only,  it  has  been  held  that 
the  attachment  lien  is  thus  abandoned.  ^ 

Ey  the  law  of  relation,  an  attachment  judgment  retroacts  to 
the  time  the  property  was  Urst  attached ;3  to  the  time  it  was 
lirst  subjected  to  garnishment;  so  that  no  incumbrances  put 
upon  it  by  its  owner  since  that  time  can  have  higher  rank  than 
the  attaching  creditor's  lien.  Such  retroaction  makes  the  lien 
perfect  from  its  first  inception  as  though  created  by  the  con- 
tract of  the  parties;  as  though  it  were  a  mortgage  lien  volun- 
tarily put  upon  the  property  by  the  defendant  himself.  On 
the  contrary,  in  case  of  final  judgment  for  the  defendant,  there 
never  has  been  any  lien  whatever;*  his  subsequently  created 
incumbrances,  mortgages  or  voluntarily-bestowed  liens  of  any 
sort  are  perfectly  good,  and  the  plaintiff's  claim  has  never 
been  more  than  an  ordinary  one.  Even  if  the  attachment  has 
been  dissolved  fur  irregularities,  and  the  defendant  still  remains 
the  debtor  of  the  plaintiff,  he  is  but  an  ordinary  debtor,  and  has 
been  nothing  more  since  the  inception  of  the  suit.  With  such 
result,  the  contingent  lien  is  seen  to  have  been  no  lien  at  all: 
so  that,  if,  pending  the  suit,  the  garnishee  had  paid  his  debt  to 
the  defendant,  or  delivered  property  to  the  defendant,  he  would 
liave  disturbed  no  lien,  and  would  not  now  be  liable  to  the 
plaintiff. 

The  retroaction  is  not  to  the  date  of  the  institution  of  the 
suit;  not  to  the  date  of  the  affidavit  or  other  preliminarj^  show- 
ing; not   to  the   issue  of  the  process,  (except  in  a  few  States,) 

'Bates  V.  Plousky,   G3   How.   Pr.  iSiiydam   et  al.  v.  Huirgeford,  2;J 

420;    Avery  «.    Stephens,   48    Mich.  Pick.  46'),  470;  Chipp  «.  Bell,  4  3hvs?. 

246;  Scarborough  v.  Malone,  67  Ala.  99;  Johnson  w.Edson,  3  Aikens,  299; 

570;  Field  c.  Dortch,  34  Ark.  399.  O'Connor    v.    Blake,    29     Cal.   312; 

2  Lowry  v  McGee,  75  Ind.  508.  Lamb  v.  Belden,  16  Ark.  539;  Hale 

«  Hill  V.  Baker,  32  Iowa,  303.  «.  Cuiuiniugs,  3  Ala.  398. 


582  THE    REMEDY    EEVIEVVED. 

but  generally  to  the  exact  time  when  property  was  reached  by 
direct  attachment,!  or  by  service  of  garnishment  upon  a  third 
person  who  really  has  property  of  the  defendant  in  possession 
subject  to  execution  in  case  the  judgment  sought  should  be 
obtained,  or  who  owes  the  defendant  a  debt  subject  to  collection 
by  the  attaching  creditor  after  sucdi  judgment  shall  have  been 
obtained. 2  The  garnishee's  affirmative  answer  to  the  question 
whether  he  has  money  or  goods  of  the  defendant  may  be  made 
after  this  date,  but  the  retroaction  of  the  judgment  is  not  to 
the  time  of  answering  but  to  the  time  of  service.  From  the' 
moment  of  service  the  lien  is  perfect — provided  judgment  rec- 
os'nizina:  the  lien  shall  follow.  From  that  moment  the  lien  is 
nothing — provided  no  such  judgment  shall  follow.  The  garni- 
shee cannot  know  the  future  contingency.  He  is  bound  to  hold 
the  money,  or  goods,  or  indebtedness,  subject  to  the  order  of 
court.  The  defendant  is  debarred  from  regaining  his  attached 
property  or  collecting  his  attached  dues,  till  the  event  of  the 
judgment  shall  have  shown  whether  there  is  a  lien  or  not. 
The  plaintiff  cannot  enforce  the  lien  till  matured  by  judgment. 

See.  5.    The    Lien    Matured   by   Judgment:    The  Attach- 
ment Lien  is  Merged  in  the  Judgment  Lien. 

It  v/ill  now  be  seen  that  it  is  only  a  judgment  lien  that  can 

1  Bride  v.  Harn,  48  Iowa,  151;  »  Fitch  «.  Waite,  5  Conn.  11;  Gates 
Wright  V.  Smith,  11  Neb.  341.  Arktin-  r.  Bushnell,  9  Id.  530;  Sewell  v.  bav- 
sas  may  be  now  ranked  among  the  age,  1^  B.  Monroe,  260;  Nutter  v. 
exceptional  States  in  this  respect,  Connett,  3  Id.  199;  Zeigenhagen  v. 
(Bergman  v.  Sells,  39  Ark.  97,)  so  far  Doe,  1  Ind.  296;  Tnitsv.  Manlove,  14 
as  direct  attachment  is  concerned,  Cal.  47;  Kiihn  «.  Graves,  9  la.  303; 
though  not  when  there  is  attachment  Stockley  v.  Wadman,  1  Hous.  (Del.) 
iu  the  hands  of  third  persons  l)y  pro-  350;  Pond  v.  Griffin,  1  Ala.  678; 
cess  of  garnishment.  This  has  been  Haldeman -b.  Hillsborough  and  Cin. 
held  in  exposition  of  Ganlt's  Dig.  §  R.  R.  Co.  2  Handy,  101;  Crowuin- 
404,  though  that  section  does  not  shield  «.  Strobel,  2  Brevard,  80;  Rob- 
seem  to  warrant  very  pointedly  such  ertson  v.  Forrest,  Id.  466;  Bethune-jr. 
construction.  Formerly,  the  doc-  Gibson,  Id.  501 ;  Crocker  «.  Radcl iff, 
trine  was  that  the  retroaction  was  3  Id.  23;  McBride  «.  Harn,  48  Iowa, 
only  to  the  time  of  the  levy ;  so  that  151;  Stiles  v.  Davis,  1  Black,  101; 
there  was  no  prior  lien:  Merrick  v.  Kennedy  «.  Brent,  6  Cr.  187;  Hacker 
HnU,  15  Ark.  343 ;  Lamb  v.  Belden,  16  v.  Stevens,  4  McL.  535. 
Id.  539 ;  Frellsono.  Green,  19  Id.  376. 


THE    LIEN    MATUKED    BY    JUDGMENT.  583 

be  enforced  against  the  property  attached,  or  garnisheed  in  the 
hands  of  the  defendant's  debtor  or  property  holder.  What  bet- 
ter position  does  the  attaching  creditor  occupy  after  judgment, 
than  he  would  have  were  lie  only  an  ordinary  judgment  credi- 
tor? Xone  wliatever,  if  he -is  the  only  creditor,  and  if  tlie 
defendant  has  been  duly  summoned  or  has  appeared,  and  if  the 
property  has  remained  subject  to  execution.  What  then  was 
the  use  of  the  attachment  or  garnishment?  The  only  use  iu 
such  personal  suit  was  to  preserve  the  property  so  as  to  have  it 
forthcoming  in  case  of  judgment,  and  so  as  to  prevent  other 
creditors  from  getting  the  advantage  by  prior  judgments  and 
seizures. 

The  attachment  lien  is  therefore  nothing  without  judgment; 
and,  upon  judgment  being  rendered,  it  is  lost  in  the  judgment. 
It  is  the  judgment  lien  which  is  enforced.  The  retroactive 
character  whicli  the  attachment  or  garnishment  gives  to  the 
judgment  is,  then,  the  only  distinction  between  this  and  an 
ordinary  judgment. 

And  so  far  as  garnishment  is  concerned,  it  will  serve  the 
plaintiff's  purpose  as  well,  in  a  personal  action,  if  made  after 
judgment,  if  he  could  be  certain  that  the  third  person  would 
not  deliver  what  he  holds,  or  pay  what  he  owes,  to  the  defend- 
ant, before  the  decree  could  be  rendered. 

The  law,  (rather,  the  State,)  does  no  arbitrary  and  tyrannical 
thing  then,  when  it  creates  such  a  contingent  lien  as  that  above 
described,  without  the  consent  of  contracting  parties.  It 
merely  aids  justice.  It  steps  between  the  defendant  and  his 
debtor  or  the  custodian  of  his  property  and  says,  "Let  matters 
stand  as  they  are  till  it  shall  be  judicially  ascertained  whether 
the  plaintiff's  sworn  statement  is  true.  If  true,  he  ought  to  be 
paid;  and  your  property,  defendant,  ought  not  to  be  spirited 
away  meanwhile,  as  he  swears  it  is  likely  to  be,  if  you  are  not 
prevented  from  putting  it  or  yourself  out  of  his  reach.  And 
you,  garnishee,  must  hold  on  to  wiiat  3"ou  have,  till  the  plain- 
titf  shall  prove  up  his  case  to  the  satisfaction  of  the  court,  and 
then  pay  to  the  plaintiff  if  the  court  shall  so  direct,  and  you 
shall  have  acquittance  of  your  obligations   to   the   defendant." 

If,  by  thus  stepping  in  between  the  parties,  the  State  enables 


584  THE    REMEDY    KEVIEWED. 

the  plaintiff  to  do  any  wrong  to  an  lioncst  defendant  vvlio  really 
does  not  owe  tlie  claim  preferred  against  him,  such  wrong  is 
done  at  the  instigation  of  the  plaintiff,  and  lie  is  liable  to  be 
made  pay  for  whatever  damage  may  result.  If,  on  the  other 
hand,  the  condition  of  things  is  such  as  his  sworn  statement  sets 
forth,  it  is  the  duty  of  the  State  to  help  him  from  being  swin- 
dled by  an  absconding  or  otherwise  debt-avoiding  defendant. 

The  lien  is  peculiar  and  exceptional  in  this:  it  comes  into 
existence  by  the  seizure  made  to  enforce  it.  Ordinarily,  the  jus 
ad  re'm,  the  right  in  the  thing  to  the  amount  of  the  debt,  must 
exist  before  seizure,  since  otherwise  there  would  be  no  right  to 
seize.  The  mortgage-lien  must  exist  before  there  can  be  any 
seizure  of  the  mortgaged  property  to  enforce  it;  the  seaman's 
lien  for  wages  must  rest  npon  a  ship  before  it  can  be  seized  in 
vindication  of  the  right;  all  admiralty  liens  must  have  arisen 
before  there  can  be  any  procedure  to  enforce  them;  all  liens  of 
any  character  must  have  a  being  before  they  can  have  any  judi- 
cial vindication,  except  the  attachment  lien. 

The  law  allows  the  ordinary  creditor  to  become  a  lien  holder 
by  making  a  seizure  without  having  a  specific  pre-existing  lien. 
The  attaching  creditor  has.  no  jus  ad  rem  before  he  attaches, 
but  he  attaches  as  though  he  had  such  right  and  were  proceed- 
ing to  enforce  it.  The  proceeding  is  anomalous.  It  is  none 
the  less  so  becanse  of  the  contingent  chai'acter  of  the  lien  thus 
exceptionally  created.  No  alleged  lien  can  be  enforced,  in  case 
the  judgment  should  be  in  favor  of  the  defendant.  There  is 
nothing  in  the  inchoate  or  uncertain  nature  of  the  attachment 
lien  prior  to  trial  that  will  excuse  the  novel  method  of  its  crea- 
tion. The  only  justification  is  in  the  fact  that  the  ends  of 
justice  are  subserved. 

This  exception  to  the  general  rule  of  law  concerning  liens  is 
based  upon  public  policy,  and  upon  tlie  necessity  of  giving  the 
creditor  some  adequate  remedy  if  the  condition  of  things  is 
such  as  he  aftirms  in  his  declaration  and  affidavits.  Becanse  it 
is  extraordinar}'-  and  anomalous,  the  law  requires  of  him  a  bond 
by  which  he  binds  himself  to  answer  for  any  damage  he  may 
cause  the  defendant.  And,  where  the  garnisliee  is  liable  to  be 
injured   by  the  process  against  him,  he   is   protected   by  like 


THE    LIEN    MATURED    BY    JUDGMENT.  585 

bond — that  is,  where  tlie  garnishment  proceedings  are  separate 
and  constitute  an  ancilhiry  suit. 

The  lien,  merely  hypothetical,  can  result  in  harm  to  no  one? 
(except  what  may  be  incident  to  the  delays  of  litigation,)  if 
the  sworn  statement  of  the  plaintiff  is  true  and  statutory;  and, 
if  untrue  or  illegally  made,  the  remedy  for  any  wrong  done  is 
at  hand,  and  the  bond  given  by  the  plaintiff  is  the  best  protec- 
tion to  the  injured  party  that  the  law  could  vouchsafe.  Such 
lien  does  not  burden  the  garnishee's  debt  to  the  defendant;  that 
is,  the  defendant  does  not  become  a  lien-holder  in  relation  to 
his  debtor.  The  fact  that  the  attachment  creditor,  through  the 
defendant,  reaches  the  garnishee  and  becomes  a  lien-holder  with 
respect  to  the  property  held  or  debt  owed  by  the  garnishee,  does 
not  put  the  hitter  in  any  worse  position  than  he  occupied 
before. 

When  the  attaching  creditor  files  his  declaration  and  affida- 
vit he  is  so  far  from  having  a  lien  upon  any  property  of  the 
defendant  that  he  has  not  any  specific  property  in  view.  His 
purpose  is  to  have  any  property  of  the  defendant  attached,  in 
amount  sufficient  to  secure  his  claiin.  Any  one  of  many  arti- 
cles of  personal  property  might  prove  sufficient,  but  the  plead- 
ings describe  no  one  of  those  articles  and  have  special  reference 
to  no  one  of  them.  So,  when  he  causes  the  summons  to  issue 
to  a  tliird  person,  he  has  reference  to  any  property  which  such 
person  may  have  in  possession  as  the  property  of  the  defendant, 
liable  to  execution  when  judgment  shall  have  been  obtained  but 
he  has  no  reference  to  any  particular  thing  and  makes  no 
description  of  any.  Or,  if  he  believes  that  such  person  owes 
the  defendant  a  debt  liable  to  the  process  of  garnishment,  he 
describes  no  particular  debt,  and  the  process  performs  its'  mis- 
sion when  it  reaches  any  debt  sufficient  to  satisfy  the  plaintiff's 
demand.  There  is  therefore  no 'Specific  lien  created  by  the  mere 
filing  of  the  declaration  and  affidavit;  and,  as  there  was  none 
pre-existing  to  be  enforced,  the  plaintiff  yet  remains  a  mere 
ordinary  creditor.  For,  there  is  not  only  no  specific  lien  yet 
created,  but  there  is  no  general  one.  The  plaintiff  has  not  yet 
a  preference  over  other  ordinary  creditors.  Proceedino-s  filed 
later  than  his  may  possibly  acquire  a  lien  in  advance  of  his. 


586  THE    REMKDY    KEVIEWED. 

When  service  lias  been  made  upon  the  defendant,  aind  prop- 
erty of  liis,  ill  liis  possession,  lias  been  attached  and  taken  into 
the  legal  cnstody  of  the  seizing  officer,  a  liypothetical  lien  is 
created.  Is  it  a  general  or  a  specific  one?  The  writ  of  attach- 
ment is  general,  so  that  the  officer  is  authorized  to  seize  any 
property  of  the  defendant  which  is  liable  to  execution,  but  the 
attachment  itself  is  specific.  AVhat  is  actually  attached  is  sub- 
jected to  the  hypothetical  lien  and  that  only.  What  is  actually 
attached  is  treated  as  though  the  plaintiif  had  had  a  jus  ad  rem, 
with  reference  to  it  when  he  caused  the  writ  to  issue;  as  though 
the  court  had  ordered  the  seizure  of  tliat  particular  property; 
as  though  a  lien  npon  it  had  been  held  by  the  plaintiff  prior  to 
the  institution  of  the  suit.  The  seizure  and  the  right  to  seize; 
the  movement  for  the  enforcement  of  the  lien  and  the  creation 
of  the  lien,  take  place  at  the  same  time.i  The  dissolution  of 
the  attachment  thereafter  would  be  the  destruction  of  the  lien; 
the  completion  of  the  enforcement  would  be  the  perfection  of 
the  lien — rather,  the  judgment  sustaining  the  seizure  would 
perfect  the  lien,  so  that  it  would  be  no  longer  hypothetical. 

Two  thino'S  therefore  must  concur  to  create  an  attachment 
lien:  service  upon  the  defendant  or  his  appearance,  or  his  noti- 
fication, and  an  actual  or  constructive  seizure  of  specific  prop- 
erty of  his  liable  to  execution. 

The  attachment  being  to  aid  execution,  though  made  at  the 
first  stage  of  the  proceedings,  must  be  effectual  so  as  to  have 
the  attached  pro})erty  forthcoming  when  required  after  judg- 
ment, and  so  as  to  prevent  rival  creditors  from  securing  hypo- 
thetical liens,  in  their  own  favor,  of  prior  rank.  Therefore, 
whatever  is  requisite  to  hold  the  defendant's  attached  property 
for  final  execution,  as  against  both  the  defendant  and  any  rival 
creditor,  is  to  be  observed  when  the  lien  is  created.  Whatever 
is  necessary  to  a  valid  seizure  after  judgment  in  ordinary  exe- 

1  Browne.  Williams,   31    Me.  403;  den,  6  111.  187;  Redus  -».   Wofford,  4 

Wilson  V.  Forsyth,  24  Barbour,    105;  Smedes  and  M.  579;  Tappan  v.  Har- 

Am.  Ex.  Bank  v.  Morris  C.  «&  B.  Co.  rison,  3  Humphreys,   173;  Lackey  rt. 

6  Hill  (N.   Y.)   363;  Brown  v.   WiU  Seihert,  23  Mo.  85;  Hannahs  ij.  Felt, 

liams,     31     Me.     403;     Stephen      v.  15  la.  141 ;  Cockey  t).  Melue,  16  Md. 

Thayer,  2  Bay,  272;  Martin  «.  Dry-  200;  Bugloy  y.  Ward,  37  Cal.  121. 


LIEN    BY    GARNISHMENT.  587 

cntion,  is  necessary  in  malving  the  attacliment.  For  attachment 
is  a  seizure  in  execution  before-hand;  a  preliminary  step  in  th(: 
enforcement  of  an  ordinary  judgm.ent  by  an  ordinary  judgment- 
creditor,  in  contemplation  of  such  judgment  being  rendered  in 
futurOf  a  step  in  advance  towards  execution,  of  such  a  cliar- 
acter  that  it  must  be  retraced,  and  all  wrong  done  by  it  indemni- 
fied, in  case  such  advance  shall  prove  to  have  been  wrongTully 
made.  It  is  a  defeasible  right  which  the  law  gives  in  consider- 
ation of  the  preliminary  proofs  by  the  plaintiff  to  show  his 
light  to  obtain  judgment  and  to  execute  it. 

As,  when  an  ordinary  judgment  is  annulled  the  writ  for  its 
execution  becomes  void,  so  when  no  judgment  follows  the  ser- 
vice of  an  attachment  writ  and  the  seizure  thereunder,  the  writ 
and  seizure  give  the  attaching  creditor  no  rights,  and  he  remains 
without  a  lien. 

Sec.  6.    Lien  by  Garnishment. 

To  create  a  lien  by  garnishment,  in  a  personal  suit  against 
the  defendant,  he  must  be  notified,  the  garnishee  must  be  sum- 
moned and  the  property  or  credits  of  the  defendant  in  the 
garnishee's  hands  must  be  attached.  So  soon  as  both  the 
defendant  and  the  garnishee  have  been  served,  there  is  a  general, 
hypothetical  lien  upon  all  that  the  garnishee  owes  the  defend- 
ant when  the  process  has  reference  to  indebtedness;  or  upon 
all  property  of  defendant,  in  possession  of  the  garnishee,  liable 
to  execution,  when  the  process  has  reference  to  property;  or 
upon  both,  wdien  there  is  reference  to  both.  Such  general  lien 
is  good  to  the  extent  that  the  garnishee,  before  answering  and 
specifying  the  particular  property  or  debt,  cannot  make  way 
with  such  assets  of  defendant,  nor  pay  or  deliver  to  him;  and 
it  is  good  to  prevent  any  other  creditor  from  getting  the  advan- 
tage by  obtaining  the  earlier  answer  and  securing  a  prior 
specific  lien.  It  is  not,  however,  till  the  answer  has  been  made, 
and  particular  property  or  debt  attached  in  the  garnishee's 
hands,  that  any  specific,  hypothetical  lien  is  known  to  have 
been  created.  If  the  answer  should  show  the  possession  of 
several  articles  of  property  or  of  several  debts  due  the  defend- 


588  THE    KEMEDY    REVIEWED. 

ant,  one  of  which  wonld  be  amply  sufficient  to  secure  the  exe- 
cution of  any  judgment  the  plaintiff  could  obtain  under  his 
pleadings,  the  other  articles  would  not  be  held  speciiically  sub- 
jected to  any  lien,  nor  generally  so  subjected,  after  the  attaching 
creditor  had  selected  and  pointed  out  the  one  to  be  attached  in 
the  garnishee's  hands.  The  others  would  then  remain  liable  to 
garnishment  by  other  creditors;  or,  in  the  absence  of  such 
process  by  them,  the  unattached  goods  might  properly  and 
legally  be  delivered  to  the  defendant  or  the  debts  paid  to  him. 
This  obvious  consideration  shows  that  the  general  lien  tempo- 
rarily existing  between  service  and  answer  was  merely  precau- 
tionary to  secure  the  plaintiff's  right,  under  the  law,  to  create 
a  specific  lien  of  hypothetical  character  to  ensure  the  execution 
of  his  judgment  in  case  he  should  ever  acquire  any  to  the  per- 
fection of  his  lien.  In  other  words,  the  temporary  hold  on  all 
the  property  of  the  defendant  in  the  hands  of  the  garnishee  was 
the  first  step,  and  the  specific  right  to  execute  certain  property 
whenever  he  should  be  entitled  to  execution, — both  were  pre- 
liminary to  the  creation  of  a  judgment-lien  and  to  the  making 
of  such  judgment-lien  effectual. 

It  will  be  understood,  without  the  saying  of  it,  that  when 
the  garnishee  has  nothing  and  so  answers,  and  the  plaintiff 
acquiesces  in  the  answer,  making  no  traverse  and  ofi'ering  no 
evidence  aliunde^  the  fact  appears  that  there  was  no  general 
lien  created  by  the  service  of  the  garnishee  and  defendant;  nor 
could  any  specific  one  result. 

It  becomes  a  matter  of  great  importance  that  the  precise  time 
of  the  fastening  of  the  lien  upon  property  of  the  defendant, 
either  in  his  hands  or  that  of  the  garnishee,  should  be  fixed, 
when  there  are  competing  attaching  creditors.  Where  no 
fraction  of  a  day  is  recognized  with  regard  to  the  attaching  of 
property,  the  precise  hour  and  moment  are  not  important;  but 
where,  as  jin  most  of  the  States,  priority  is  nicely  dependent 
upon  the  time  of  attaching,  reckoned  by  the  hour  and  minute, 
it  is  of  the  first  importance  that  the  return  should  show  when 
the  service  was  made  and  when  the  lien  was  created.  If  several 
attachment  liens,  in  favor  of  sev^eral  independent  creditors 
respectively,  are  simultaneously  created,  they  are  all  of  equal 


LIEN    BY    GARNISHMENT.  5S9 

raiilc.  The  garnishee,  served  at  the  same  moment  in  all  the 
cases,  is  bound  to  all  the  several  plaintiffs  alike,  though  his 
answers  should  be  rendered  at  different  times  in  the  several 
cases.  The  priority  would  be  reckoned,  not  hj  the  time  of 
answering  but  bj  the  time  of  summons — assuming  that  the 
answer  would  be  the  same  in  all  the  cases  and  sufficient  to  hold 
the  property  or  debt  in  every  case.  Under  such  circumstances, 
the  several  attaching  creditors  are  all  upon  equal  footing,  and 
should  sliare  pro  rata  the  assets  garnisheed,  in  case  all  succeed 
in  maturing  their  liens  by  judgment. 

Suppose  all  should  summon  the  garnishee  simultaneously,  but 
some  one  should  be  in  advance  of  the  rest  in  getting  service 
upon  the  defendant:  would  that  one's  lien  outrank  those  of  the 
rest?  In  a  personal  action  of  attachment,  the  citation  of  the 
defendant  is  necessary  to  the  suit.  The  creditors  who  should 
summon  the  garnishee  before  the  existence  of  the  main  cause, 
would  be  at  a  disadvantage  compared  with  a  competing  creditor 
who  has  brought  the  principal  defendant  into  court,  and  then 
summoned  the  garnishee.  Although  ordinarily,  after  the  writ 
has  been  issued  against  the  defendant  but  not  yet  served,  a 
creditor  may  summon  the  garnishee,  and  the  defendant  would 
not  be  allowed  to  defeat  the  garnishment  by  pleading  that  the 
summons  was  premature,  the  question  might  be  a  very  serious 
one,  among  competing  attachers,  whether  such  premature  sum- 
mons would  hold  good  against  one  made  by  another  creditor 
who  had  already  brought  the  principal  defendant  into  court. 
Where  one  or  the  other  of  two  attaching  creditors  must  fail,  it 
would  seem  that  under  such  circumstances,  the  one  who  had 
had  the  principal  defendant  served  before  summoning  the  garn-, 
isliee,  would  be  entitled  to  priority  of  lien  over  the  property 
subjected  to  garnishment,  though  the  two  summons  had  been 
simultaneously  served  upon  the  same  garnishee. 

If  the  plaintiffs  in  several  attachment,  personal  suits  against 
the  same  defendant  should  all  simultaneously  have  him  served 
and  brought  into  court,  and  then  all  should  sue  cut  garnish- 
ments simultaneously  against  the  same  garnishee  to  attach  in 
his  hands  the  same  property,  the  first  service  of  summons  upon 
the  garnishee  would  give  preference  to  the  creditor  causing  it 


590  THE    EEMEDY    REVIEWED. 

to  be  made,  over  tlie  later  services.  True,  all  being  in  the 
liands  of  the  same  otKcer,  all  should  be  served  simultaneously; 
true,  any  partiality  shown  by  the  officer  to  one  attacher  above 
the  rest  would  subject  him  to  damages;  but,  in  case  there 
should  be  priority  of  service  in  any  one  of  the  cases,  there 
would  be  a  corresponding  priority  of  lien. 

It  may  be  said  that  the  service  of  the  writ  of  attachment 
upon  the  defendant  creates  no  lien  so  long  as  there  is  nothing 
really  attached;  but  under  the  circumstances  above  supposed, 
where  several  creditors  simultaneously  have  one  defendant  served 
with  such  writ,  the  one  who  should  get  service  thereafter  first 
upon  the  garnishee  would  have  priority  of  specific  lien  upon 
the  property  which  such  garnishee  should  afterwards  acknowl- 
edge to  possess,  belonging  to  the  defendant. 

The  above  suggestions  have  been  made  on  the  assumption 
that  the  garnishee  would  answer  alike  in  all  the  simultaneous 
garnishment  cases,  and  disclose  a  state  of  facts  sufficient  to 
charge  him.  He  should  make  known  the  fact  in  each  that  he 
had  been  garnished  in  the  other  cases,  for  the  sake  of  his  own 
protection.  But,  if  he  should  answer  differently  in  the  several 
cases:  acknowledg-lno-  indebtedness  to  the  defendant  in  one  but 
denying  it  in  another;  acknowledging  the  possession  of  the 
defendant's  property  in  one,  but  denying  it  in  another,  the  final 
result  would  be  the  same;  for  those  who  receive  the  negative 
answer  would  be  sure  to  traverse  it,  and  tlie  proof  to  set  it  aside 
and  hold  the  garnishee  would  be  ready  at  hand  in  the  afiirraative 
answers  given,  provided  the  interrogatories  were  equally  pointed 
and  directed  to  the  elicitation  of  the  same  facts.  The  lien 
would  not  be  later  in  creation  by  reason  of  such  tergiversation 
on  the  part  of  the  garnishee,  and  the  defendant  could  take  no 
advantage  of  the  delay  in  brinj^ing  out  the  truth.  Of  course, 
if  the  answers  were  such,  in  all  the  cases,  as  to  result  in  the 
discharge  of  the  garnishee,  all  the  creditors  would  t\ire  alike, 
and  there  Avould  be  no  lien  created  by  the  garnishments,  and 
the  attachment  part  of  the  suit  would  be  at  an  end,  if  nothing 
had  been  seized  in  the  defendant's  hands. 

Under  the  rule  that  formerly  prevailed  in  Massachusetts,  that 
the  garnishee,  (or  trustee)  must    be   held    accountable   unless 


LIEN    BY    GARNISiniENT.  591 

Biifficient  appeared  in  liis  answer  to  discharge  liim,i  the  h'a- 
bility  was  personal  to  him,  in  case  he  reallv  had  nothing  of 
defendant's  property  in  his  possession,  since  there  could  be  no 
lien  where  there  was  nothing  for  it  to  rest  npon,  and  since  the 
law  is  universal  that  garnishment  creates  no  lien  npon  the  garn- 
ishee's own  proDcrty.  The  opposite  rule  now  prevails — that 
the  garnishee  nnist  be  discharged  if  he  do  not  disclose  facts  to 
hold  him*  and  if  such  facts  are  not  shown  by  other  proofs  In 
cases  of  doubt  he  ought  to  be  discharged.  If  the  plaintiff 
does  not  think  his  interrogatories  fairly  answered,  he  may, 
through  the  court,  compel  fair  answers.  If  he  finds  the  inter- 
rogatories themselves  inadequate  to  draw  out  the  required  state 
of  facts,  he  may  apply  for  leave  to  amend  them,  or  to  serve 
another  set  npon  the  garnishee.  If,  by  reason  of  prevarication 
or  double-dealing,  or  collusion  with  the  defendant,  or  other  bad 
practices,  the  garnishee  should  subject  himself  to  liability  when 
he  really  has  no  property  in  hand  subject  to  garnishment,  the 
plaintiff  acquires  a  right  against  him  but  no  lien  upon  any 
property  whatever  by  reason  of  such  practices. 

Property,  subjected  to  the  attachment  lien  by  reason  of  garn- 
ishraent,  remains  iu  the  garnishee's  hands  so  long  as  the  lien 
continues  to  be  merely  contingent,  inchoate  or  hypothetical.  Il 
is  considered  under  seizure,  and  the  garnishee  is,  during  this 
perio'd,  the  legal  custodian  of  the  lien-bearing  property,  as  much 
so  as  a  sheriff's  keeper  of  property  actually  seized  by  that 
officer.  It  is  essential  to  the  maintenance  of  the  lien  that  the 
property  be  held  virtually  under  arrest.  While  it  is  in  the 
garnishee's  hands,  and  the  attachment  proceedings  are  pending, 
it  is  constructively  in  court.  The  custodian  is  subject  to  the 
orders  of  the  court  respecting  it,  except  that  he  cannot  legally 
be  ordered  to  deliver  up  the  property  so  long  as  the  lien  remains 
merely  hypothetical.  He  cannot  voluntarily  give  it  up  to  the 
court  or  to  the  court's  officer,  without  rendering  himself  liable 
to  the  defendant  in  case  the  attachment  should  be  dissolved,  or 


J  Tabor  v.  Armstrong,  4  Mass.  206;      Webb,  13  Mass.  215. 
Cleveland    v.    Clap,    5    Mass.    201 ;  ^\J.S.  v.   Laugton   &  Trustees,  5 

Hatch  V.    Smith,  Id.  43;  Gordon  v.      Mason,  280. 


592  TUE    REMEDY    EEVIKWED. 

there  sliould  be  jnclginent  for  the  defendant,  and  there  shorild 
be  any  injury  done  to  the  defendant  by  such  voluntary, 
premature  delivery  to  the  court. 

Whatever  dis;?oIves  the  attaclnnent  annuls  the  garnishment 
ah  initio^  so  that  it  may  be  seen  that  no  lien  whatever  has 
existed  by  reason  of  the  summons  of  the  garnishee,  his  affirma- 
tive answer  and  even  the  order  of  court  deciding  that  he  is 
liable  under  his  answer. 

The  hypothetical  lien  may  be  created  by  garnishment,!  and 
publication  notice  to  the  absent  debtor  who  cannot  be  served 
personally  or  by  citation  left  at  his  domicile.  Ordinarily, 
seizure  l)y  the  officer  and  actual  taking  into  possession  of 
property  belonging  to  the  debtor,  with  publication  notice  to  the 
absent  owner,  and  proper  pleadings  against  the  thing  seized, 
are  proceedings  in  rem:  is  there  any  difference  if  the  thing  be 
seized  in  the  hands  of  a  third  person  who  is  lawfully  in  posses- 
sion and  who  is  allowed  to  retain  it  as  keeper  until  the  lawful- 
ness of  the  plaint,iff 's  claim  shall  have  been  judicially  ascer- 
tained? In  case  of  an  attachment  proceeding  in  rem,  without 
garnishment,  the  hypothetical  lien  arises  upon  seizure  and 
publication;  is  there  any  dilierence  when  the  thing  attached  is 
in  the  hands  of  a  third  person  and  is  left  in  his  hands  subject 
to  garnishment?  There  is  none.  The  great  signilicance  which 
the  law  of  the  property  action  ascribes  to  the  actual  taking  and 
keeping  of  the  res  as  the  fictitious  defendant  in  the  cause,  does 
not  imply  that  the  continued  possession  of  the  res  attached 
may  not  be  by  the  garnishee;  for  he  is  in  some  sense  an  agent 
of  the  court  under  such  circumstances.  Should  the  result  of 
the  litigation  be  such  as  to  mature  the  lien,  then  it  is  seen  that 
he  has  been  holding  for  the  court  since  the  date  of  his  sum- 
mons. His  actual  possession  has  been  the  court's  constructiv^e 
possession. 3     The  sheriff  or  marshal,  (as  the  case  may  be,)  has 

1  Renneker  v.  Davis,  10  Rich.   Eq.  Hicks  v.  Gleason,  20  Vt.  139. 

289;  Wilder -y.  Weatherfield,    33  Vt.  2j],.j,]^iQe   ^_    Stanley,    12    Leigh, 

765;  Swett«.  Brown,   5    Pick.    178;  406;  Walcott -b.   Keith.   2   Fos.    196; 

Tindell  v.  Wall,  Busbee,  3;   Thomp-  Stiles  v.  Davis,  1  Black,  101. 
son  V.  Allen,  4  Stew.  &  Porter,   184; 


LIEN    BY    GARNISHMENT.  593 

held  the  property  all  the  wliile  through  the  garnishee  as  keeper 
under  the  court,  though  the  sherili'  has  not  appointed  such 
keeper  and  is  not  reeponsible. 

It  has  been  thought  that  garnishment  does  not  create  a  lien 
npon  the  property  attaclied  in  a,  third  person's  hands  but  only 
creates  the  right  of  holding  him  res])onsible  for  its  value. ^ 
This  position  is  wholly  untenable.  The  very  object  of  attach- 
ment is  to  create  a  lien;  and  if  none  is  created,  there  can  be  no 
available  attachment.  The  suit  might  exist  against  the  princi- 
pal debtor  as  a  personal  one,  but  there  could  be  no  attachment 
suit  for  want  of  a  res.  If  the  defendant  is  not  served  and  does 
not  appear,  against  what  would  the  suit  be  directed? 

It  is  true  that  property  or  credit  attached  in  the  hands  of  the 
garnishee,  remaining  in  his  hands  as  custodian  under  the  court, 
may  easily  be  put  out  of  the  reach  of  the  attaching  creditor  so 
as  to  make  him  unable  to  enforce  his  lien  against  that  specific 
thing;  but  the  difficulty  of  such  enforcement  is  no  argument 
against  the  validity  of  the  lien.  If  garnishment  creates  the 
rigid  of  holding  the  garnishee  responsible  for  the  value  of  what 
has  been  attached  in  case  he  should  spirit  it  away  before  it  is 
wanted  for  execution,  that  is  precisely  such  right  as  the  creditor 
has  against  the  defendant  himself  who  has  received  the  res 
under  a  forthcoming  bond  and  then  made  way  with  it.  This 
right  'is  a  lien  right.  It  is  such  a  right  as  will  enable  the 
attaching  creditor  to  restrain  the  garni sbee  from  such  disposi- 
tion of  the  property  or  credit  as  would  prevent  its  execution.  2 

It  is  certain  there  can  be  no  attachment  suit  against  a  thing, 
(in  which  there  is  no  personal  defendant,)  unless  the  thing  is 
under  arrest  so  that  it  can  be  condemned.  It  is  certain  that 
the  court,  having  no  jurisdiction  over  its  owner,  (who  has  not 
been  cited  as  defendant  and  cannot  be,)  can  have  none  over  his 
property  as  a  thing  indebted  by  fiction  of  law,  unless  it  has 

1  See  Bigelow  v.  Andress,  31  111.  Parker  «.  Parker,  2  Hill  Ch.  35; 
322;  Walcott^.  Keith,  2  Fos.  196;  Parker  v.  Farr,  Browne,  331;  Aid- 
Johnson  v.  Gorham,  6  Cal.  195;  rich  n.  Woodstock,  10  N.  H.  99; 
Moore  b.  Holt,  10  Gratt.  284.  Loyless  v.  Hodges,  44   Ga.  647.     See 

2  Moore  v.  Kidder,  55   N.   H.  488;  Bigelow  v.  Andress,  31  III.  322. 

38 


594:  THE    REMEDY    REVIEWED. 

been  duly  seized,  brought  into  court,  and  notice  of  proceeding 
against  it  given  so  that  the  interested  debtor  may  appear. 

On  the  other  hand,  the  absence  of  the  debtor  will  not  prevent 
his  creditor  from  garnisheeing  his  goods  or  credits  in  anotlier's 
possession,  and  from  proceeding  in  rem  to  have  them  made 
available  for  the  payment  of  the  creditor's  demand;  and  yet, 
by  the  law  of  garnishment,  the  possession  must  not  be  dis- 
turbed till  judgment.  The  possession  meanwhile  is  either  that 
of  the  garnishee  in  his  own  right,  or  that  of  the  court  by  the 
garnishee  as  keeper.  The  former  is  the  case  if  the  proceed- 
ings should  result  in  judgment  against  the  plaintiff;  but  the 
latter,  should  the  goods  be  condemned  to  pay  the  debt. 

Attachment  in  the  hands  of  the  garnisliee,  then,  is  equiva- 
lent to  actual  seizing  and  taking  property  of  the  debtor,  so  far 
as  to  enable  the  court  to  acquire  jurisdiction  over  the  property 
or  credit  proceeded  against,  when  there  is  no  personal  suit 
against  the  debtor. 

The  position  of  the  garnishee,  in  such  action,  is  not  different 
from  that  in  a  suit  of  attachment,  when  the  defendant  is  brought 
into  it  by  summons.  He  is,  in  such  property  action,  no  more 
a  defendant  than  in  a  personal  action  against  the  debtor.  Wliere 
ancillary  garnishment  proceedings  are  separate  from  the  principal 
action,  this  statement  may  not  be  so  apparently  evident;  but  when 
the  debtor  is  not  served  with  process  but  merely  notilied  by  pub- 
lication, and  the  thing  attached  is  the  property  or  credit  of  that 
debtor  in  the  garnishee's  hands,  the  only  defendant  is  the  thing 
that  has  been  subjected  to  garnishment,  and  the  possessor  of  it 
is  nothing  more  than  a  garnishee.  In  other  M'ords,  whether 
the  debtor  is  served  with  process  or  notilied  by  publication,  the 
position  of  the  garnishee  is  tiie  same.  It  Avill  be  seen  else- 
where in  this  treatise  that  his  liability  to  injure  himself  is  much 
greater,  that  the  question  of  jurisdiction  concerns  liim  more 
nearly;  that  the  rights  of  the  debtor  need  to  be  looked  after 
by  him,  for  his  own  protection,  more  closely,  when  the  debtor  is 
not  present;  but  it  is  as  manifest  that  he  is  merely  a  garnishee 
when  the  action  is  directly  against  property  as  it  is  Mdien  the 
attachment  debtor  appears  personally  and  defends  the  suit.    lie 


LIEN    BY    GARNISHMENT.  595 

is  a  mere  stake-liolder  in  either  case.  Pie  holds  the  stakes  for 
the  use  of  the  winner  under  botli  circumstances. 

No  lien  is  created  by  the  filing  of  the  declaration  and  affi- 
davit, nor  by  the  issue  of  the  process  by  the  court  through  the 
clerk,  nor  by  the  pla-jing  of -it  in  the  hands  of  the  sheriff, 
exept  in  a  few  States.  Not  even  an  inchoate  lien  is  thus  created. 
Service  only,  in  most  of  the  States,  gives  it  existence  as  an 
inchoate  lien  niaturable  by  judgment.  Service  on  the  defendant 
or  notice  by  publication,  followed  by  attachment  in  the  defend- 
ant's hands,  or  summons  actually  served  upon  the  garnishee, 
operates  upon  the  property  or  credit  of  the  defendant  in  the 
garnishee's  hands,  or  in  the  defendant's,  and  subjects  it  to  the 
attachment  lien.i 

The  sheriff  ought  to  serve  attachments  and  garnishments  in 
the  order  of  date  in  which  he  receives  them.  This  is  plainly  his 
duty  when  there  are  several  writs  in  his  hands,  each  aiming  to 
secure  a  lien  upon  one  fund.  And  this  is  because  the  garnish- 
ment lien  is  an  attachment  lien,  and  because  priority  governs. ^ 

The  plaintiff  can  have  no  recourse  against  the  garnishee  after 
the  defendant's  liability  has  ceased  by  payment  or  otherwise. 
Though  the  garnishee  may  have  no  interest  in  not  paj'ing  the 
plaintiff,  provided  he  gets  an  acquittance  of  his  obligation  to 
the  defendant;  and  though  it  is  the  business  and  interest  of  the 
defendant  himself  to  see  that  the  garnishment  is  not  prosecuted 
after   payment,   yet  the  garnishee  himself  may  set  uj)  that  the 

1  Mattingly  v.  Boyd,  20  How.  128;  M.  Ch.  449;  Bryan  v.  Lasliley,  13  Sm. 

Brashear  v.  West,  7  Pet,  008;  Hack-  &   M.  284;  Tafts  v.  Manlove,  14  Cal. 

er  «.    Stevens,  4  McLean,  536;  Mc-  47;  Wallis  v.  Forest,  2  Har.  &  McH. 

Cobb  V.  Tyler,  2  Cr.  O.  C.  199;  Grigs-  2G1 ;  Watkins  v.    Field,  6  Ark.  391 ; 

ley  v.   Love,   Id.   413;     Kennedy  v.  Martin     v.    Foreman,    18    Id.    249; 

Brent,  6  Id.  187;  Gates  v.  Buslinell,9  Williamson  v.  Bowie,  6  Munf.  (Va.) 

Ct.  580 ;  Fitch  v.   Waite,   5   Id.  117;  17G;    Crowninsliield     v.    Strobel,    2 

Parker  ■».    Kinsman,   8    Mass.   436;  Brev.  (S.  C.)  80;    Beth une -».  Gibson, 

Burlingame  v.  Bell,  16  Id.  318 ;  Burk-  Id.  501 ;  Robertson  v.  Forest,  Id.  466 ; 

liardt  V.  McClellan,  15  Abb.  Pr.  243;  Crocker  v.  Radcliflfe,  3  Id.  23. 

Brisrgs  «.  Koiins,  7  Dana,  405;  Pond  -Talbot  v.   Harding,  10   Mo.  350; 

V.  Griffin,    1  Ala.   678;  Tillinghast  v.  Wilder  t).  Weatherbead,  32   Vt.  765; 

Johnson,  5  Id.  514;  Sewell  b.  Savage.  Woodruff  «.  French,  6   La.  Ann.  62; 

I  E.  Mon.  2G0;  Nulter  v.  Connett,  3  Johnsoa  v.  Griftith,  2  Cr.  C.  C.  199. 
Id.  199;  Me£r.«  v.  Wirslow,  1  Sm.  & 


596  THE    KEMEDT    REVIEWED. 

lien  on  tlie  funds  or  proportj  in  liis  hands  has  ceased  to  exist, 
by  the  payment.  Whatever  has  effected  the  dissolution  of  the 
attachment  without  the  satisfaction  of  the  debt  would  also  dis- 
solve the  garnishment,  and  could  be  pleaded  by  the  garnishee, 
who  has  at  least  the  interest  of  being  freed  from  further 
annoyance. 

Even  when  there  is  not  an  end  of  the  snit,  if  there  is  an  end 
of  the  attachment,  the  garnishee  can  no  longer  be  held  where 
the  n-arnishment  is  an  auxiliary  of  the  attachment  process.  In 
no  case  can  the  plaintiff  make  his  money  out  of  the  garnishee 
w^ithout  first  obtaining  a  final  judgment  against  the  defendant 
with  recognition  of  the  attachment  lien.  An  appeal' suspends 
the  judgment,  as  to  its  finality,  and  therefore  suspends  the  col- 
lection of  money  from  the  garnishee. 

See.  7.    Differences  Reconciled. 

So  far  as  statutes  differ  from  each  other,  they  necessitate 
differences  in  decisions  which  are  usually  reconciled  by  refer- 
ence to  tlie  statutes  which  they  expound;  but  the  principles 
governing  the  attachment  remedy  should  be  applied  substan- 
tially to  the  same  effect  everywhere. 

The  differences  in  decisions,  not  caused  by  variances  in  stat- 
utes are  largely  attributable  to  a  misconception  of  the  relation 
of  parties  or  to  misuse  or  abuse  of  terms  employed.  Thougli 
this  whole  treatise  is  largely  devoted  to  an  incidental  adjust- 
ment of  these  difficulties,  it  remains  to  notice  a  few  of  them 
more  particularly. 

It  has  long  been  a  mooted  question,  whether  a  judgment 
debtor  can  be  garnished.  It  may  be  considered  under  two 
aspects:  first,  in  relation  to  the  judgment  debtor;  and  secondly, 
in  relation  to  the  court  rendering  the  judgment.  So  far  as  the 
former  is  concerned,  there  is  no  reason  why  he  should  not  be 
garnished  and  the  judgment-debt  attached  in  his  hands  in  a 
suit  against  the  judgment  creditor.  He  has  no  cause  of  com- 
plaint when  he  gets  acquittance  by  paying  to  another  under 
judicial  order  what  he  would  otherwise  be  obliged  to  pay  to  his 
immediate  creditor.     He  would  liave  cause  to  complain  should 


DIFFERENCES    KECONCILED.  597 

he  be  made  to  pay  at  a  time  when  such  payment  would  give 
him  no,  acquittance,  or  under  circumstances  which  would  give 
him  no  relief  from  the  judgment.  If  the  judgment  against 
him  is  in  a  foreign  court,  or  in  any  court  other  than  that  in 
which  he  is  garnished,  he  should  be  discharged  upon  disclosing 
tlie  existence  of  the  judgment. 

This  leads  to  the  consideration  of  the  question  in  relation  to 
the  court  rendering  the  judgment.  The  court,  being  possessed 
of  jurisdiction,  has  the  exchisive  right  of  effectuating  its  decree 
by  execution.  JS^o  other  equal  tribunal  can  step  before  it  and 
say  that  the  judgment-debtor  must  pay  to  some  person  other 
than  the  judgment-creditor,  without  interfering  with  the  juris- 
dictional power  to  execute  the  judgment  rendered.  If  however 
the  attachment  suit  is  brought  in  the  same  court  that  rendered 
the  judgment,  there  would  be  no  clash  of  jurisdiction  should 
the  attaching  creditor  be  subrogated  to  the  right  to  the  judg- 
ment-creditor in  a  suit  against  the  latter.  Chief  Justice  Green 
of  New  Jersey  said  broadly  that  no  case  is  known  to  exist  "  to 
sustain  tlie  position  that  a  judgment-debt  is  liable  to  attach- 
ment." i  He  qualities  his  I'emark  however,  (after  citing  au- 
thorities which  seem  to  go  no  further  than  to  sustain  the  rule 
that  such  debtor  cannot  be  ordered  to  pay  as  garnishee  when 
such  payment  will  not  give  him  relief  from  the  judgment  ren- 
dered'or  proceeding  pending  against  him,)^  by  saying  further 
on  in  the  decision  he  was  rendering:  "I  am  of  opinion  that  a 
debt,  whereon  judgment  has  been  rendered,  upon  which  the 
party  is  liable  to  immediate  execution,  is  not  the  subject  of 
attachment  in  the  hands  of  the  garnishee,  and  that  the  prin- 
ciple applies  with  peculiar  force  to  judgments  recovered  in 
another  State." 

There  has  been  some  apparent  conflict  of  opinion  upon  the 
question  of  liability,*  but  nearly  all,  if  not  quite  all,  can  be 

1  Shinn  v.  Zimmerman,  3  Zab.  150.      ding,  Id.  313;  Sir  John  Parrot's  Case, 

2  Sharp  V.  Chirk,  2  Mass.  91;  How-  Cro.  Eliz.  G3;  Kerry  v.  Bower,  Id. 
ell  V.   Freeman,  3  Id.  121;  Prescott      185;  2  Bac.  Abr.  260. 

V.   Parker,   4  Id.  170;  Thorndike  ».  ^Affirmative:    Minard    v.   Lawler, 

De  Wolf,   6    Id.   170;    Franklin    v.  26   111.   301;    Halbert  v.    Stinsou,   6 

Ward,    3    Mason,    136;     Coppel    v.  Blackf.   398;  Skipper  v.    1<  osier.  20 

Smith,  4  T.  R.  312;  Grant  v.   Haw-  Ala.   330;  Keith    v.   Harris,   9   Kan. 


598 


THE    REMEDY    REVIEWED. 


reconciled  on  the  common  ground  that  a  judgment-debt  may 
be  attached  and  the  judgment  debtor  garnished  in  an  attach- 
ment suit  pending  against  the  judgment  creditor  when  it  can 
be  done  without  ch\sh  of  jurisdiction  and  without  subjecting  or 
endangering  the  garnishee  to  double  payment;  and  that  such 
debt  cannot  be  attached  when  such  conflict  or  injustice  would 
result. 

The  term-phrase,  in  custodia  legis,  is  frequently  employed 
in  decisions  upon  attachment  cases  in  the  statement  of  the  gen- 
eral doctrine  that  property,  money,  debts  and  rights  in  the 
custody  of  the  law  are  not  attachable.  On  this  general  doctrine 
the  courts  are  well  agreed;  but  there  have  been  serious  differ- 
ences of  opinion  upon  exceptional  states  of  fact.  May  money 
collected  by  a  sheriff  on  execution  be  attached  in  his 'hands? 
May  money  held  by  a  clerk  of  court, ^  register  in  chancery,  an 
executor,  administrator  or  like  officer  be  attached  under  any 
circumstances?     These  have  been  mooted  questions. 

Considering  funds  thus  held  to  be  in  the  custody  of  the  law, 
it  has  been  held  that  they  are  not  attachable,  and  that  the  officer 
cannot  be  garnished  as  the  trustee  of  the  attachment  defendant,  i 

On  the  other  hand,  distinction  has  been  made  between  funds 
held  by  a  sheriff  subject  to  a  future  order  of  distribution  and 


386;  O'Brien  v.  Liddell,  10  S.  &  M.  Dec.   327;)  Prentiss  «.   Bliss,  4  Vt. 

371 ;  Fithian  v.  N.  Y.  &  Erie  R.  R.  513,  (24  Am.  Dec.  631 ;)  Blair  v.  Can- 

31  Pa.  St.  144;  Belclier  v.  Grubb,  4  tey,  2  Speer's  Law,  34,  (42  Am.  Dec. 

Harr.  4G1;  Gager  v.  Watson,  11  Ct.  300;)  Marvin  v.  Hawley,  9  Mo.  378, 

168.  (43  Am.  Dec.  547 ;)  Ux  parte  Fearle 

Negative:  Black  v.  Black,  32  N.  J.  &  Lewis,  13  Mo.  467,  (53  Am.  Dec. 

Eq.   75;    Elizabeth   Saving   Inst.   v.  ISo).     See  Crane  ■;;.  Freese,  1  Harri- 

Gerber,   35   Id.  159;  Trowbridge  v.  son,    (N.J,)  305;  Ross  v.   Clarke,   1 

Means,   5   Ark.   135;    (39  Am.  Dec.  Dall.  354;  Canover  v.  Ruckman,  33 

368;)    Tunstall  v.   Means,    Id.    700;  N.  J.  Eq.  686;  Davis  v.  Mahoney,  9 

Norton    v.   Winter,    1    Oregon,    47;  Vroom,  107.     That  a  clerk  of  court 

Trombly  ■».   Clark,   13  Vt.  118,   and  is  not  garnisbable  for   funds  in  his 

cases  mentioned   in  the  preceding  hands    under    like     circumstances: 

note  as  cited  by  Green,  C.  J.  Bowden  v.   Schatzell,   1   Bailey  Eq. 

»  That  money  collected  by  a  sheriff  360.     See  Note,  55  Am.  Dec.  260,  in 

on  execution  cannot  be  attached   in  which  the  above  references  and  some 

his  hands:  Dawson  v.   Holcomb,   1  to  follow  are  pointed  out.     See   also 

Ohio,  275,  (13   Am.  Dec.  618;)  Jones  ante,  pp.  218-220  for  authorities. 
V.  Jones,  1  Bland's  Ch.  443,  (18  Am. 


DIFFERENCES    KECOXCILED. 


599 


those  already  adjudicated  and  due  to  a  designated  person.  In 
the  hitter  case,  the  money  has  been  held  subject  to  attachment 
sn  a  suit  against  such  person  and  the  oflicer  liable  to  garnish- 
ment. ^  And  a  register  in  chancery  was  held  garnishable  for  a 
balance  in  his  hands  from  a  sale.*.  And  the  rule  of  distinction 
has  been  held  applicable  not  only  to  the  officers  above  named 
but  also  to  clerks  of  court,  prothonotaries,  recorders,  justices  of 
the  peace,  constables,  receivers,  disbursing  officers,  assignees  in 
bankruptcy,  trustees  of  insolvent  estates  or  corporations,  city 
and  county  treasurers,  executors,  administrators  and  guardians. ^ 
The  difference  of  opinion  seems  to  turn  on  the  application 
of  the  i)hi'?LS,e  in  cuetodia  legis.  The  expression  is  figurative : 
nothing  can  be  literally  in  the  custody  of  the  law.  The  custody 
is  tliat  of  the  officers  of  the  law;  and,  whether  such  a  custodian 
can  be  garnished  or  not  depends  upon  the  circumstances  under 
which  he  holds,  and  his  relations  to  the  fund  and  to  the  persons 
interested  and  to  the  court-  "When  litigation  has  ended,  and 
the  fund  has  been  adjudicated,  distribution  ordered,  costs  set- 
tled, and  nothing  remains  but  for  the  officer  to  pay  over  to  the 
person  entitled  to  the  money,  is  his  possession  still  that  of  the 
law?  In  a  sense  it  is;  in  another  sense  it  is  not.  AYhether 
the  figurative  phrase  "  in  the  custody  of  the  law"  may  still  be 
properly  employed  with  reference  to  the  fund  or  not,  it  seems 
sound  doctrine  that  the  general  rule  applicable  to  the  non-at- 
tachability  of  things  when  in  such  custody  no  longer  fits  the 
case.  It  would  be  a  manifest  abuse  of  the  term  to  apply  it, 
with  the  general  rule  accompanying,  in  such  exceptional  cases. 
The  money,  after  final  adjudication,  is  no  longer  in  legal  cus- 
tody for  tlie  purpose  of  judicial  action,  though  it  may  be  said 
to  be  still  in  such  custody  for  the  one  remaining  purpose  of 
being  paid  to  the  rightful  owner.     By  noting  this  distinction, 

'  Hurlbnrt  v.  Hicks,  17  Vt.  193,  (44  cited.     See  also  ante,  p.  221,  notes  1, 

Am.  Dec.  329 ;)  Tucker  v.  Atkinson,  2,  3,  for  otlier  authorities. 

1    Humph.    300,    (34  Am.  Dec.  650;)  2  Langdon   v.   Lockett,  6  Ala.  727, 

King  V.   Moore,  6  Ala.  160,  (41  Am.  (41  Am.  Dec.  78). 

Dec.  44;)  Hill   v.  Beach,  1  Beas.  46.  ^  gj,;i-ionds  v.  Harris,  92  Incl,  505, 

See  the  Note  and  the  ca-ies  cf  Crane,  and  manj^  cases  cited  ante,  pp.  221- 

Ross,  Canover  and  Davis  just  above  224. 


GOO  THE    REMEDY    KEVIEWED. 

the  differences  with  regard  to  money  and  proj^erty  in  custocLia 
legis  may  be  adjusted. 

Here  may  be  remarked  tlie  different  attitude  which  a  county 
or  any  municipal  corporation  presents  when  it  is  acting  in  its 
governmental  capacity  from  that  presented  in  its  ordinary 
business  capacity  as  a  stockliolder  in  a  railroad  company  or  a 
contractor.  There  is  no  reason,  (unless  there  be  in  any  State  a 
statutory  one)  why,  in  the  latter  capacity,  a  county  or  city 
should  not  be  p-arnished  or  directly  sued  by  attachment.  Suits 
against  public  corportions  in  such  capacity  are  of  frequent 
occurrence.  It  is  held  that  a  corporation,  may  bind  itself  in 
any  way  that  a  natural  person  may  bind  liimself. ^ 

Where  a  partnership  can  be  sued  by  the  firm  name  and 
brought  into  court  by  the  summoning  of  any  one  member  of  it, 
it  has  been  held  analogous  to  a  corporation.  It  is  treated  as  a 
distinct  entity,  an  artificial  person,  a  creature  of  law,  like  a 
corporation.  This  exceptional  character  of  partnership  is  found 
in  Louisiana;  and  though  the  liability  of  a  commercial  firm 
there  is  joint  and  several  —  in  solido — yet  "  during  the  life  of 
a  partnership  a  partner  is,  like  a  corporator  in  a  corporation, 
liable  and  made  to  respond  individually  only  through  a  judg- 
ment against  the  intellectual  being  of  which  he  is  a  component 
part."  And  it  was  concluded  that  since  the  Supreme  Court 
of  the  United  States  has  "finally  settled  the  doctrine  that  State 
corporations,  domiciled  within  the  State  by  which  they  are  cre- 
ated, are,  so  far  as  relates  to  the  enforcement  of  rights  of  action 
by  suit,  citizens  of  that  State,  although  some  of  the  corporators 
would  not  be  within  the  jurisdiction,  the  reasoning  *  *  ■» 
leads  to  the  same  conclusion  with  reference  to  Louisiana  com- 
mercial pai'tnerships":  so  it  was  decided  that  federal  courts 
have  jurisdiction  in  a  suit  by  an  alien  against  a  partnership 
domiciled  in  Louisiana,  composed  of  two  members,  one  of 
whom  is  an  alien — the  obligation  sued  on  having  arisen  in  that 
State.  3 


^  Kelly  V.  Board  of  Public  Works,  citing  Louisville   R  R.  v.  Letson,  2 

75Va.  2G4.  How.  554;  Railroad   Co.  ».  Wliittnn, 

2  Liverpool,   etc.,   Navig-ation    Co.  18  "Wall.  283.     See  Breedlove  y.  Nic- 

13.  Agar  &  Leloog,  14  Fed   Rep.  615,  olet,  7  Pet.  413,  (also  cited,)  in  wliicb 


DIFFEKENCES    KECONCILED.  601 

Partnership  goods  having  been  attached  for  a  partnership 
debt,  on  process  against  three  of  the  partners,  and  the  suit 
afterwards  dismissed  as  to  two  of  them  for  want  of  jurisdiction 
— the  sureties  on  the  release  bond  given  to  the  partnership  are 
bound  for  the  amount  of  the  judgment  rendered  against  the 
remaining  partner.  Such  judgment  is  held  to  bind  the  part- 
nership property  under  the  circumstances,  i 

Bj  noting  the  character  of  the  partnership,  whether  its  obli- 
gations are  joint  or  joint  and  several,  many  seemingly  conflicting 
decisions  may  be  reconciled.  In  Kansas,  each  partner  in  a  firm 
is  liable  for  the  whole  of  the  partnership  debts,  and  suit  may 
be  against  any  one  or  more  of  the  partners;  and  an  attachment 
may  issue  against  any  one  or  more  who  may  be  liable  thereto; 
but  the  attachment  can  be  maintained  only  against  such  as  are 
liable.  Partnership  property  may  be  attached  whether  the 
W'rit  runs  against  the  firm  or  one  or  more  members.  The 
property  belonging  exclusively  to  one  member  cannot  be  seized 
nnder  an  attachment  issued  against  the  firm  or  ag-ainst  another 
member  and  not  against  himself.  2 

May  a  common  carrier  be  garnished  with  respect  to  goods 
in  transitu^  It  has  been  held  that  he  cannot  when  the  goods 
have  passed  beyond  the  lines  of  the  State  in  which  the  writ  is 
issued;  that  a  railroad  cannot  be  held,  though  the  goods  be 
withi-n  the  lines  at  the  time  of  the  service  of  the  summons,  if 
it  was  served  too  late  to  convey  the  necessary  orders  to  the  sub- 
ordinates immediately  in  charge  of  the  goods;  and  finally  and 

judgment  was  rendered  against  two  individual  partners.     Sureties  on  the 

resident    members    of   a   Louisiana  bond  were  sureties  for  the  partner, 

commercial      partnership    but    not  ship,   for    the   purpose   therein    de- 

against  a  third  one  who  was  an  alien  scribed,  and  if  compelled  to  pay  the 

— the  suit  being  by  an  alien.  amount  they  clearly  have  a  right  of 

1  lubusch  V.  Farwell,  1  Bhick,  566:  action  against  all  who  composed  the 

"Although  the  other  partners  were  firm  at  the  time   they  assumed   the 

not  prosecuted  to  judgment,  because  responsibility.     Gay  v.  Johnson,   33 

they  were  out  of  the  jurisdiction  of  N.   H.   167;    Story   on   Part.  §  375; 

the  court,   still   the  judgment    was  Collier  on  Part.  §  713,  p.  630;  Bene- 

rendered  upon  a  partnership  debt,  to  diet  v.  Stevens,  25  Ct.  392." 

which   it  would   be  the  duty  of  the  ^  Williams    v.   Muthersbaugh,    29 

marslial   to  apply  partnership  prop-  Kan.   730 ;     Ante,  p.  156,  and    cases 

erty  in  preference  to  the  debts  of  the  there  cited. 


602  THE    KEMEDY    EEVIEWED. 

more  broadly,  that  "public  policy  and  the  proper  discharge  of 
the  duties  of  common  carriers,  requires  that  they  cannot  be 
held  liable  upon  a  garnishee  summons  for  personal  chattels  in 
their  possession  in  actual  transit  nt  the  time  the  summons  is 
served."  1 

The  qu'estion  is  important;  and  it  turns  entirely  upon  the 
relation  of  the  common  carrier  to  the  shipper  and  owner  of  the 
goods,  and  the  capacity  in  which  he  holds  them.  If  the  carrier 
has  no  possession  and  control  such  as  would  preclude  the  direct 
attachment  of  them  as  the  property  of  the  defendant,  the  goods 
are  not  liable  to  gai-nishment.  It  lias  already  been  shown  that 
the  possession  of  a  traveller's  baggage  by  a  landlord,  or  that 
of  a  horse  by  a  borrower,  is  not  such  as  to  preclude  direct 
attachment.  If  the  carrier  has  possession  for  no  other  purpose 
than  to  convey  from  one  place  to  another,  and  he  has  the  prop- 
erty in  process  of  conveyance,  he  cannot  be  required  to  stop 
them  in  transitu^  even  within  the  State,  wdien  such  stopping 
would  work  injury  to  himself,  interfere  with  the  carriage  of  the 
goods  of  others,  render  him  liable  therefor,  and  put  him  in 
worse  condition  than  he  was  before  the  summons.  The  rio:ht 
of  stoppage  in  transitu  is  in  the  shipper. 

Most  of  the  differences  have  arisen  from  failure  to  distino-nish 
between  different  relations  of  parties,  and  from  the  use  of  dif- 
ferent terms  to  express  the  same  idea.  Those  wdio  deny  that 
attachment  is  a  proceeding  against  a  thing,  generally  admit 
that  it  is  effectual  only  against  the  property  attached  when  the 
debtor  has  not  been  reached  by  service,  nor  has  appeared.  If, 
objecting  to  the  proper  and  convenient  designation  now  almost 
universally  employed,  they  prefer  a  more  round-a-bout  way  of 
expressing  the  same  idea  as  to  the  character  of  the  suit,  no 
error  need  ensue.  So,  those  who  still  state  that  the  purpose  of 
attachment  is  to  compel  appearance  can  hardly  mislead  so  long 
as  they  admit  that  the  real  purpose  is  to  create  and  enforce  a 
lien  whether  there  be  any  appearance  or  not.  So,  those  who 
call  publication  notice   "  constructive  service,"  work  no  harm 


^  Pates  ??.  Chlcaaro,  &c.  R.   R.  Co.,       R.  R.  v.  Larnpcl,  10^,  Til.  20.'^,  respect- 
60  Wis.  296.     See  St.  Louis  &  I.  M.       ing  lespoiisibility  beyond  lines. 


DIFFEEENCES    RECONCILED.  603 

SO  long  as  tliey  do  not  give  it  the  effect  of  service.  Many  otlier 
disputes  arising  from  the  misuse,  abuse  or  misapplication  of 
terms,  especially  the  term  "jurisdiction,"  as  well  as  those 
springing  from  different  party  relations,  have  been  pointed  out, 
and  their  reconciliation  essayed,  in  the  foregoing  chapters;  and 
is  it  too  much  to  say  that  there  are  no  longer  any  serious 
differences?  The  most  serious  is  the  doctrine  that  a  court  of 
general  powers,  possessed  of  jurisdiction  over  the  defendant 
and  the  subject  matter,  may  disregard  statutory  requisites,  and 
yet  have  authority  over  the  ancillary  proceeding.  But  the 
bench  and  the  bar  of  the  country  will  agree  to  this  proposition: 
Jurisdiction  cannot  he  acquired  hy  usurjyation. 

If,  notwithstanding  the  variances  in  statutes,  a  general 
family  likeness  has  been  presented;  if,  notwithstanding  the 
duty  of  expositors  to  follow  the  statutes  however  variant  from 
the  prevalent  law,  their  decisions  have  been  found  ordinarily  to 
accord  with  each  other  in  principle;  and  if,  despite  the  popular 
view  that  there  are  as  many  different  systems  of  attachment  as 
there  are  States,  the  practice  is  shown  to  be  nearly  uniform  in 
all,  the  general  subject  is  seen  to  be  not  wanting  in  unity. 


INDEX. 


[the  eeferences  are  to  pages.] 


ABANDONMENT, 

of  attached  property  by  keeper  or  receiptor,  283-5. 

by  the  creditor,  gives  junior  attacher  first  rank,  489. 
by  creditor,  with  a  part  retained,  497. 
by  court  losing  jurisdiction,  298. 
by  means  of  fire,  waste,  etc.,  313. 
lien  not  lost  if  constructive  possession  retained,  286. 
sheriff  may  regain  property  illegally  abandoned  by  his  keeper  or 

receiptor,  285-6. 
lien  lost  if  custody  actual  or  constructive  is  lost,  281,  812-813. 
garnishee  may  recover  costs  though  the  attachment  be  abandoned, 
386. 
ABATEMENT, 

'  plea  in,  to  dissolve  attachment,  428-431. 
ABSCONDING, 

a  generally  authorized  ground  for  attaching,  47. 
about  to  abscond,  51. 
avoiding  ordinary  process,  48. 
by  leaving  the  State  or  county,  48. 
by  secreting  within  the  State,  49,  50. 
leaving  without  intent  to  defraud,  not  absconding,  49. 
intent  inferred  from  circumstances,  51. 
ABSENTEES, 

acts  of,  indicating  permanent  removal,  43. 
declarations  of,  respecting  their  absence,  43. 
Intent  of,  as  to  residence,  42-5,  49. 
maintaining  a  home  within  the  State,  44. 
protracted  absence,  31,  42. 
without  fixed  abode  in  the  State,  45-6. 
ACCEPTING  SERVICE, 

by  the  defendant,  128. 
not  by  the  garnishee,  265. 
ACCOUNT.    (See  Book  Account.) 


606  INDEX. 

ADDRESS  OF  THE  WRIT, 

when  amendable  by  the  clerk,  141 
ADMINISTRATOR, 

when  garnish  able,  224,  598-9. 

when  not  garnishable,  224-5,  599. 
AFFIANT, 

in  obtaining  attachment  should  be  the  plaintiff,  if  present,  83. 

if  an  agent,  should  swear  to  his  authority,  83. 

may  be  the  plaintiff's  attorney,  81,  83'.     (See  Affidavit.) 
AFFIDAVIT, 

to  obtain  writ  of  attachment,  76-112. 

necessary,  76. 

jurisdictional,  77-79. 

must  contain,  what,  79. 

form  of,  80. 

by  whom  made,  81-83. 

by  an  agent,  82-84. 

signing  of,  83-4. 

made  before  whom,  84. 

how  construed,  85-6. 

of  the  indebtedness,  86-90. 

of  the  character  of  the  debt,  87. 

of  the  items  of  the  debt,  88. 

of  the  grounds  for  attaching,  90-101. 

must  be  of  statutory  grounds,  90,  91. 

of  knowledge  and  belief,  93-6. 

inference  and  hearsay,  95. 

must  be  certain,  96-98. 

alternate  allegations,  98-101 

amendments,  101-107. 

superfluous  words,  101. 

omission  of  names,  103. 

slight  variances,  103. 

fatal  defects,  106-7. 

minor  defects,  107. 

proof  to  the  satisfaction  of  the  court,  108. 

requisites  where  traverse  is  not  allowed,  103. 

requisites  to  sustain  the  affidavit,  109. 
AGENT  OF  A  CORPORATION, 

appointed  by  it,  247. 

to  be  served  with  process  is  usually  its  president,  239-240. 

may  be  a  minor  officer  designated  by  it,  247. 

attaching  creditor  cannot  effectually  serve  a  minor  officer  not  thus 
designated,  250. 
ALTERNATION, 

in  allegations  of  the  petition,  98-9. 

in  stating  grounds  for  the  writ,  98-100,  419. 
ALIQUOT  PARTS, 

when  proceeds  distributed  in,  493-4.  ' 


INDEX.  607 

AMENDMENT, 

of  the  affidavit,  101-107.     (See  AFFroAViT.) 

of  the  attachment  bond,  124-7.     (See  Attachment  Bond.) 

of  the  garnishee's  answer,  368-372. 

of  the  pleading,  when  it  does  not  release  surety  on  a  dissolution 

bond,  407. 
of  the  writ  of  attachment,  140,  142. 
of  the  return,  2C0-265.     (See  Retukn  OF  Pkocess.) 
when  retroactive,  491. 
ANCILLARY  PROCEEDING, 

in  aid  of  the  main  action,  4,  13. 

may  be  either  foreign  or  domestic,  4. 

in  effect  against  property,  12-14. 

dependent  upun  the  principal  suit,  68. 

must  fall  with  its  principal,  418. 

when  separate  from  the  principal,  should  not  precede  it,  71. 

against  property  though  the  principal  suit  is  personal,  72. 

essential  to  the  principal  action  when  the  debt  is  not  due,  74. 

if  jurisdictionless,  does  not  defeat  the  main  suit,  76,  533. 

requires  summons  or  notification  of  the  debtor,  129,  130. 

not  necessarily  within  the  jurisdiction  because  the  personal  suit  is, 

332,  549. 
dissolved  by  bonding,  surety  bound,  407. 
ANOMALOUS    GROUNDS, 

for  attachment,  3-J,  58-9. 
ANSWER, 

after  general  appearance,  390-1. 

may  deny  the  jurisdiction,  390. 

of  garnishee  must  be  sworn,  responsive,  etc.,  857. 

may  be  excepted  to,  357. 

not  confined  to  personal  knowledge,  358. 

may  be  by  a  corporation  through  its  president,  or  by  a  firm 
through  a  member,   358-359.      (See    Charging    the 
Garkishee.) 
APPEAL, 

made  by  special  appearer,  when,  391-2. 
error  in  ruling,  etc.,  reviewed  upon  exceptions,  434. 
surety  bound  though  his  principal  discharged  as  bankrupt,  407. 
APPEARANCE  OF  THE  DEBTOR, 
when  special,  388-392. 
what  constitutes,  388. 

without  becoming  a  party  to  the  suit,  389-390. 
to  quash  proceedings  for  defects  of  record,  388. 
to  object  to  the  jurisdiction,  389. 

to  move  for  new  trial  of  an  attachment  suit  in  rem,  390. 
special  appearer  cannot  respond  to  the  merits,  391. 

nor  plead  prescription,  391. 

nor  move  for  default,  391,  548. 

nor  move  for  a  stay,  391,  548. 


608  INDEX. 

APPEARANCE  OF  THE  B^BTOIi—Continued. 

special  appearer  cannot  move  for  a  continuance,  391,  543. 
nor  consent  to  a  continuance,  391,  548. 
nor  object  to  the  notice,  393. 
when  general,  392-394. 
general  when  unqualified,  393. 
equal  to  personal  service,  in  effect,  393. 
waives  irregularities  of  summons,  etc.,  393-4,  546-8. 
may  be  followed  by  personal  judgment  though  the  attachment  be 

dissolved,  394. 
erroneously  entered,  may  be  corrected,  394. 

not  afiected  by  the  withdrawal  of  the  attorney  who  entered  it,  394-5. 
ASSIGNMENT, 

fraudulent,  ground  for  attaching,  54,  98,  215,  216. 

of  goods,  they  may  be  directly  attached  though  delivered 
to  the  assignee,  154. 
must  be  valid  as  to  the  attaching  creditor  to  preclude  him  from 

attaching  directly,  155. 
of  a  note  subject  to  equities,  502. 

with  reference  to  attachment,  prior  and  subsequent,  508-6. 
general,  by  an  insolvent,  505. 
of  partnership  property,  506. 
of  money  not  yet  earned,  not  allowable,  213. 
of  funds  deposited,  217. 
may  be  illegal  yet  not  fraudulent,  54. 
fraudulent,  how  charged  in  the  affidavit,  98. 
by  non-resident  does  not  dissolve  a  previous  attachment,  414-5. 
precludes  garnishment,  209. 
does  not  prevent  traverse  of  garnishee's  answer  setting  up  assign. 

ment,  209,  210. 
may  be  perfected  after  service  on  garnishee,  211. 
to  pay  creditors — trustee  not  garnishable,  when,  313,  215. 
should  be  disclosed  by  garnishee,  214. 
if  garnishee  claims  to  be  assignee,  further  evidence  by  plaintiff,  377. 

ATTACHING, 

directly  under  a  general  writ,  151. 

specific  writ,  151. 
what:  real  and  personal  property  and  credits,  153. 

stocks,  legacies,  dividends,  etc.,  152. 

water-craft,  558-560. 

not  evidences  of  debt,  153. 

what  debtor  owns  and  possesses,  153,  164 

not  trust  funds,  154. 

not  property  held  by  a  trustee,  161. 

subject  to  existing  liens,  154. 

things  fraudulently  in  possession  of  a  third  person,  154. 

not  things  validly  assigned,  155. 

interest  of  a  partner,  155. 

goods  of  defendant  intermixed  with  those  of  another,  187. 


INDEX.  609 

A.TTACBmG— Continued. 

wTiMt:  non-resident  co-debtor's  interest,  156. 

partnership  effects,  15G. 

dissolved  partnership's  effects,  156. 

debtor's  interest  in  property  held  in  common,  157. 

sole-trading  wife's  property,  158. 

not  property  legally  held  by  a  third  person,  159. 

not  goods  in  transitu^  when,  160,  601-2. 

property  held  by  tenants,  lessees,  or  borrowers  not  attachable 
as  theirs,  160. 

not  property  or  money  held  in  official  capacity,  161. 

goods  consigned  to  vendee,  but  not  delivered  nor  paid  for, 
attachable  in  suit  against  the  vendor,  161. 

goods  shipped  in  payment,  attachable  in  suit  against  the  con- 
signee, 162-4. 

goods  to  be  weighed,  measured,  etc.,  before  delivery,  attacha- 
ble as  property  of  the  consignor,  163. 

goods  constructively  delivered  by  bill  of  sale,  as  those  of  con- 
signee, 162-3. 

not  things  exempt  by  law,  164-166.     (See  Exemption.) 

not  all  choses  in  action,  167-171.     (See  Choses  in  Action.) 
"how:    method  of  attaching,  171,  181. 

land,  so  as  to  create  lien,  171-2. 

land,  description,  172-3. 

interest  in  land,  173-4. 

personal  property,  175-7. 

growing  crop,  175. 

manipulation,  not  necessary,  176. 

use  of  force,  178-9. 

not  by  trick,  fraud,  etc.,  180. 

not  by  trespass,  179-180. 

serving  process  on  the  possessor,  178. 

leaving  copy  of  the  order  with  the  defendant,  181. 

taking  inventory  of  goods,  180. 

taking  property  sufficient  to  satisfy  the  creditor's  demand,  178. 
when:  time  of  attaching,  182-184. 

as  early  as  possible  after  issue  of  writ,  182. 

within  return  day,  182. 

immediately  when  necessity  requires  it,  182-3. 

not  after  notice  of  insolvency,  when,  183. 

not  in  unreasonable  night  hours,  183-4. 
viTongfully:  wrongful  attaching,  184-189. 

officer  not  protected  against  wronged  third  persons  by  plain- 
tiff's instructions,  184. 

officer  must  make  inquiry,  185. 

officer  must  respect  the  carrier's  lien,  186-7. 

surety   liable    for  wrongful    seizure   under  color  of   office, 
188,  551. 

damages  for  wrongful  levy.     (See  Damages.) 

39 


610  INDEX. 

ATTACHMENT    BOND, 

in  general,  112-137. 

object,  113. 

damages,  113. 

required  before  issue  of  the  writ,  115. 

amount: 

fixed  by  statute,  116. 
statute  must  be  followed,  118. 
governed  by  the  amount  of  the  debt,  116. 
excess  harmless,  117. 
when  fixed  by  the  court,  118. 
obligors : 

attaching  creditor  the  principal,  118. 
signing  by  agent  or  attorney,  119-121, 
signing  by  surety,  133. 
signing  by  surety  for  his  firm,  133. 
number  of  sureties  required,  133. 
surety,  when  bound  for  costs,  etc.,  134. 
surety,  when  wanted  as  a  witness,  124. 
change  of  sureties,  134-5. 
additional  security,  134-5. 
amendment: 

allowed  before  issue  of  writ,  186. 

not  allowed  usually  after. interests  of  others  have  intervened, 
13G-7. 
ATTORNEY  AT  LAW, 

may  make  affidavit  for  attachment  in  the  absence  of  his  client,  81-3. 
may  be  garnished  in  suit  against  his  client,  814,  223. 
cannot  cancel  the  appearance  made  for  his  client  by  withdrawal 
from  the  case,  394-6. 
AUDITORS, 

of  absconding  debtor's  estate,  468-3. 

AUTHORIZATION  OF  ATTACHMENT, 

wholly  by  statute,  24. 

alike  in  all  the  States  as  to  principal  grounds  and  causes  of  action, 

31-67. 
granted  to  ordinary  creditors  to  secure  ordinary  debts,  31. 
extraordinary  process  allowed  when  the  ordinary  is  inadequate,  31-2. 
justifiable  on  the  ground  of  property  indebtedness,  and  the  iuade- 
quacy  of  ordinary  process  under  given  circumstances,  570-596. 
BAIL.    (See  Surety.) 
BAIL    BOND.    (See  Dissolution  Bond.) 

BAILEE, 

appointed  by  the  sheriff,  884.     (See  Keeper,  Receiptor.) 
BANK, 

insolvent  national,  cannot  be  sued  by  attachment,  143. 

when  garnish  able  for  deposits,  199,  200.  ^ 

holding  funds  of  an  insolvent  firm,  341. 


INDEX.  61  i 

BELIEF. 

oath  to,  for  the  issue  of  the  writ,  28,  33. 

affidavit  to  "knowledge  and  belief,"  93. 

further  proof  required  upon  traverse,  29,  93. 
BILL  OF  LADING, 

evidence  of  ownership — transferred  by  delivery,  164. 
BOOK    ACCOUNTS, 

not  attachable  as  evidence  of  property  or  credits,  169-170. 
BOND.    (See  Attachment  Bond,  Foktiicoming  Bond,  Dissolution  Bond, 

Indemnity  Bond.) 
BOND  SUIT  AGAINST  SHERIFF.    (See  Shekiff.) 
BOND  TO  RESTORE, 

after  judgment  nisi,  464. 
BONDING, 

by  the  defendant,  396-411. 

by  an  intervening  claimant,  483. 
BURDEN  OF  PROOF, 

on  attaching  creditor  traversing  garnishee's  answer,  875-6. 

on  attachment-debtor  when  plaintiff  in  recohvention,  440-1. 

on  garnishee  who  has  answered  that  he  has  expended  the  defend- 
ant's funds,  to  show  how  and  when,  376-7. 

on  garnishee  who  has  acknowledged  that  he  holds  funds  to  show 
that  he  holds  in  trust,  377. 

on  garnishee  who  has  answered  that  he  had  paid  the  defendant,  to 
show  that  he  did  so  without  knowledge  of  the  attachment,  etc., 
380. 

on  intervenor  to  establish  his  allegations,  482. 

on  plaintiff  claiming  damages,  455. 

on  plaintiff-in-rule  who  contests  the  affidavit,  432. 

on  defendant-in-rule  when  the  affidavit  is  not  evidence,  432-3. 

on  vendee,  when,  501. 

CAUSE  OF  ACTION, 

ordinary  debt  due,  the  principal  cause,  23-4,  61,  546. 
liquidated  and  certain,  62,  74,  201. 
arising  upon  contract,  62,  73,  78. 
money  demands,  in  some  States,  62. 
damage  claims  for  torts,  in  some  States,  62-3-4. 
claims  sounding  in  damages,  in  some  States,  62. 
wrongful  conversion  of  personal  property ,^in  some  States,  63. 
cause  must  be  stated  on  oath,  87. 
what  statement  is  necessary,  87,  89. 
amount  must  be  stated,  546. 

oath  to  the  debt  necessary  to  the  creation  of  the  lien,  88. 
oath  that  the  debt  is  due  generally  necessary  to  the  creation  of  the 

lien,  62,  77-9,  88. 
oath  must  be  as  required  by  statute,  88. 
jurisdiction  in  the  attachment  proceedings  dependent  upon  the  oath 

being  as  required,  88. 
overstatement  of  the  debt  not  fatal,  88. 


C12  INDEX. 

CAUSE  OF  ACT10T>i— Continued. 

claim  need  not  be  itemized,  89. 

slatement  of  the  debt  in  exceptional  attachments,  89,  90. 
"CAVEAT    EMPTOR," 

when  applicable,  535. 

when  inapplicable,  537,  543. 

"CAVEAT    VENDITOR," 

when  applicable,  548. 
CHARGING  THE  GARNISHEE, 
in  general,  341-387. 
nature  of  the  proceeding,  341-348. 
what  garnishment  is,  341. 

suit  by  plaintiff  for  a  debt  due  the  defendant,  343. 
suit  against  the  garnishee  auxiliary  and  hypothetical,  244-7. 
plaintiff  seeks  to  be  subrogated  to  the  defendant's  rights,  347-8. 
interrogatories,  how  prepared,  348-9. 
should  be  definite,  350. 
interrogating  corporations,  350. 
additional  interrogatories,  when,  351. 
exception  to  interrogatories,  354. 

for  irrelevancy,  356. 

for  want  of  jurisdiction,  354. 

for  illegality,  355. 

because  of  previous  garnishment,  355. 

for  want  of  allidavit,  357. 
answers  to  interrogatories,  857-368. 

under  oath,  357. 

responsive,  357. 

not  confined  to  personal  knowledge,  358. 

by  a  corporation,  358. 

by  a  firm,  359. 

by  maker  of  negotiable  note,  364. 

by  denial  of  indebtedness,  360. 

by  plea  of  fraud,  363. 

matter  of  defence  to  the  main  action,  360. 

deemed  true  unless  traversed,  862,  372-4. 

should  not  be  equivocal,  359. 

may  plead  offset,  367. 

may  set  up  anything  that  would  be  a  defence  if  the  gar- 
nishee were  sued  by  his  creditor,  365. 
contingent  liabilities  not  chargeable,  366. 
amended  answer,  368,  372. 

when  allowable,  363. 

liberally  treated,  869. 
second  application  to  amend,  370. 
information  received  after  answering,  372. 
traverse  of  the  answer,  372-382.     (See  Tka verse.) 
charging  order,  382-389. 

interlocutory,  382. 


INDEX.  613 

CHARGING    THE    Q AUNlSllE^— Continued. 

when  interest  is  included,  382-3. 

when  interest  is  not  chargeable,  383-4. 

when  costs  are  chargeable,  384. 

when  costs  should  be  allowed  to  the  garnishee,  385-7. 

traverse  of  the  answer,  372-383. 

demurrer,  373. 

new  evidence,  374. 

burden  of  proof,  375-6,  380. 

shifting  the  onus,  376-7. 

counter  testimony  to  new  evidence,  378. 

limits  of  the  examination,  379. 

record  of  the  main  case  considered  as  before  the  court,  379. 

answer  admitting  indebtedness,  381. 

(See  Garnishee,  GARNisHiNa.) 
CHOSE  IN  ACTION,  SUCH  AS   NOTES,  BONDS,  ETC. 

not  property  or  credit  to  be  proceeded  against,  167. 

statutory  attaching  of,  exceptional,  168. 

not  ordinarily  subject  to  garnishment,  170. 

impounding  negotiable  notes,  169. 

bonds,  certificates,  notes,  title  deeds,  etc.,  evidences  of  debt,  170. 

credits  attachable  as  incorporeal  things,  171. 
CITY, 

not  garnishable  in  its  governmental  capacity,  236-9. 

why  not  garnishable,  236-8. 

reasons  for  holding  a  city  liable  to  garnishment,  238-9. 

municipal  officers  not  garnishable,  237. 

exceptional  practice,  288-9. 
CITIZENSHIP, 

not  essential  to  residence,  40. 
CLAIMANT, 

when  intervening,  puts  bis  title  at  issue,  481. 

may  bond  attached  property,  482. 

cannot  both  attach  and  claim,  163. 

remedies  other  than  intervening,  483. 

remedies  when  he  cannot  replevy,  557. 

surety  may  become  claimant,  484. 
CLERICAL    ERRORS, 

when  amendable,  141. 
CLERK  OP  COURT, 

an  officer  and  minister  of  the  court,  134. 

issues  writs  of  attachment  as  minister  of  the  court,  184-5. 

cannot  issue  writs  when  the  bench  is  vacant,  134. 

presumed  to  act  by  the  court's  direction,  135. 

statutory  authorization  for  him  to  issue  process,  135. 

not  garnishable  as  legal  custodian,  221. 
CO-CONTRACTOR, 

if  non-resident,  his  interest  attachable,  156. 


614  INDEX. 

CO-DEBTOR, 

non  residence  of,  no  ground  for  attaching  his  associate's  property, 
1  ')(■). 
COLLATERAL    ATTACK, 

not  allowable  for  mere  error,  532. 

m;iy  disregard  a  court's  decision  in  favor  of  its  own  jurisdiction,  533. 

may  disregard  jurisdictionless  judmieuts,  53'2,  533. 

of  judgment  in  an  ancillary  proceeding  when  valid  judgment  has 
been  rendered  in  the  personal  suit,  533-4. 

rival  attacher  may  attack,  to  protect  his  lien,  534. 

by  a  stranger  to  the  judgment,  534-5. 

not  permissible  after  a  jurisdictional  judgment  rendered  in  a  gen- 
eral proceeding  against  a  thing,  534-5. 
COMMON    CARRIER, 

garnishable  for  funds  in  hand,  242. 

when  not  garnishable  for  a  passenger's  baggage,  242. 

not  always  garnishable  for  goods  in  transitu,  2i'2,  601-2. 

his  possession  ordinarily  tliat  of  the  consignee,  1G2. 

consignor  cannot  stop  in  transit  goods  shipped  in  payment,  162. 

CONCEALMENT, 

by  the  debtor,  of  himself,  to  avoid  process,  47. 
secreting  property  in  fraud  of  creditors,  51-2. 

secreting  himself  included  in  the  term  "absconding,"  49,  50.     (See 
Absconding  Debtor.) 
CONCURSUS, 

for  the  distribution  of  proceeds,  529,  530. 
distribution  in  aliquot  parts,  when,  493-4. 
CONSIDERATION, 

necessary  to  the  validity  of  a  sale,  536. 
restitution  of  the  price  for  want  of,  541-2. 
CONSIGNMENT, 

of  goods  upon  credit  does  not  prevent  their  attachment  in  a  suit 

against  the  consignor,  if  they  have  not  been  delivered,  lGl-3. 
goods  shipped   in   payment,   attachable  as  the  property  of  the  con- 
signee, 1R2-3. 
goods   shipped   in   payment  attachable   as  those  of  the  consignee, 

though  the  consignor  retain  a  bill  of  lading,  164. 
may  be  good  between  contracting  parties  yet  not  as  to  third,  persons, 

163. 
when  the  right  of  stoppage  in  transitu  remains  in  the  consignor,  162. 
CONSTABLE, 

an  executive  officer,  134. 
as  legal  custodian,  not  garnishable,  221,  598. 

his  sureties  held  liable  on  his  official  bond  for  tortuous  attachments, 
551.     (See  Sheriff.) 
CONSTRUCTION  OF  ATTACHMENT  LAWS,  27,  85-6. 

CONSTRUCTIVE    POSSESSION, 

does  not  afford  ground  for  garnishment,  201. 

in  the  court,  though  the  actual  custody  be  in  the  garnishee,  10. 


INDEX. 


615 


CONSTRUCTIVE    SEIZURE, 

attaching  in  third  hands,  10. 

an  interest  or  intangible  thing,  174-5. 
land  by  notice  to  the  tenant,  171-2. 
legal  interests  susceptible  of  bearing  a  lien,  173. 
legal  or  equitable  interests  in  laud,  173. 
a  glowing  crop,  175. 

tangible,  movable  property  by  merely  declaring  it  seized,  a 
nullity,  17G-7. 
CONSTRUCTIVE    SERVICE, 

not  effected  by  publishing  notice,  270,  304-5. 
CONTINGENCY, 

attachment  lien  depends  uiwn  judgment  sustaining  it,  21,  582-7. 

hypothetical  till  maturity,  21,  580-3. 
contingent  liability  no  ground  for  garnishment,  203. 
CONTRACT, 

debt  due  upon,  24. 
for  the  payment  of  mctiey,  63. 
CONTROL, 

of  property  must  accompany  possession  to  render  it  liable  to  gar- 
nishment, 154. 

CONVENTIONAL    LIENS, 

enforceable  by  exceptional  attachments,  22. 

CORAM  NON  JUDICE, 

when  proceedings  are,  8,  28,  388,  533. 

CORPORATION, 

state,  not  garnishable,  230. 

state,  its  officers  not  garuishable,  230. 

state,  reason  for  non-liability,  231-2. 

subordinate  public  corporations,  232-3. 

county,  not  garnishable  in  its  governmental  capacity,  233, 

county,  liable  in  other  capacity,  234,  600. 

township,  subject  to  same  rule,  235. 

city  and  its  officers  not  garnishable,  237. 

city  liable  in  other  than  its  governmental  capacity,  238-9. 

city,  reasons  for  liability,  '238-9. 

city,  reasons  against  liability,  236-8. 

school-district,  under  the  rule  of  public  corporations  as  to  garnish- 

ment,  236. 
private,  liable  like  natural  persons,  239. 

may  make  oath  by  its  chosen  representative,  81,  247. 

may  be  served  through  its  authorized  officer,  130,  240,  243. 

may  be  garnished  wherever  it  may  be  served,  238. 

may  be  sued  wherever  it  may  be  served,  246-7. 

garnished  for  what  it  holds  in  the  state,  240. 

garnished,  not  for  stock  owned  by  shareholder,  240. 

bank,  garnishable  for  funds  deposited  by  an  insolvent  firm, 
241. 

insurance  company,  for  sum  due  on  a  policy,  241. 


61b  INDEX. 

CORPOliATlON—Contmued. 

private,  agents  of  insurance  company  not  garnishable  for  debts  due 
by  the  company  to  the  attaching  creditor,  except  for 
property  or  funds  in  hand,  241-2. 
railroad  company  liable  as  garnishee  for  what  it  holds  ol 

the  debtor's  property,  243. 
railroad  company  not  liable  for  goods  already  transported 

bej'ond  the  county,  242. 
railroad  company  not  liable  as  garnishee  for  goods  in  tran- 
situ beyond  the  state  line,  or  when  it  cannot  stop  trans- 
portation without  loss,  601-2. 
railroad  company's  funds  not  attachable  in  the  hands  of  its 

fiscal  agent,  243. 
railroad  bonds  not  delivered  to  stockholders,  garnishable  in 

the  hands  of  a  trustee,  etc.,  243. 
railroad  company,  where  garnished  as  a  domestic  corporjv 

ration  out  of  its  own  state,  244. 
railroad   company   mortgaged,  when   its  earnings  are  gar- 

nishable  in  a  suit  against  the  mortgagor,  244. 
ticket  agents,  gate  keepers,  etc.,  244. 
captain,  purser,  Qlerk  of  steamer,  etc.,  244-5. 
credits  attachable,  249. 
served  without  the  jurisdiction,  no  lien  created  on  its  prop- 

erty,  250. 
sued   by   attachment,   indebted    stockholder  may  be  gar- 
nished, 250. 
cannot  be  garnished  through  its  receiver  till  he  has  been 

qualified,  250. 
return  of  the  sheriff  should  name  the  ofBcer  served  with 
process,  257,  267. 
COSTS, 

follow  judgment,  450. 
counsel  fees,  451-4. 
taxed  fees  and  costs,  452. 
when  garnishee  may  be  required  to  pay,  384. 
when  not  liable,  385. 
when  allowed  to  him,  385-7. 

payable  out  of  the  thing  attached  and  condemned,  385-6. 
due  by  the  party  cast  in  the  suit,  387. 
COUNTER-CLAIM.    (See  Reconvention.) 
COUNTY, 

not  garnishable  in  its  governmental  capacity,  233-4. 
(See  Corporation.) 
COURTS.    (See  Jurisdiction.) 
CUSTODY, 

must  be  that  of  the  court,  279-299. 

actual,  by  the  sheriff,  279-280. 

by  the  sheriff,  though  entrusted  to  a  keeper,  279-280. 

requires  what  diligence,  280. 


INDEX.  617 

CVSTODY— Continued. 

may  be  protected  by  suit  against  trespassers,  281. 

constructive  possession  with  actual  control,  281. 

by  keepers  as  servants  of  the  sherifl',  282. 

by  defendant's  MareUouseman,  appointed  keeper,  288. 

by  receiptors,  283. 

property  should  be  described  in  the  receipt,  284. 

lost  by  delivery  of  property  to  the  defendant,  285-6. 

not  lost  if  defendant  does  not  hold  adversely  to  the  court,  287. 

by  defendant  under  the  sheriff,  288-290. 

lost  by  the  court,  no  judgment  can  be  rendered  against  the  property, 

298. 
by  garnishee,  is  under  the  court,  294. 

independent  of  both  parties,  291-2. 

derived  from  the  defendant,  and  the  right  of  holding  is  not 
diminished  by  the  garnishment,  290,  293. 
CUSTODY  OF  THE  LA.W, 

general  rule  of  non-liability  to  garnishment  218. 

property  in  sherifi''s  hands,  219. 

money  in  sheritPs  hands  as  proceeds  from  execution,  219,  220,  598-9. 

as  surplus,  221. 
money  in  other  otRcer's  hands  as  surplus,  222. 
money  held  by  public  corporation  officers,  221,  298. 

by  executors,  administrators,  guardians,  etc.,  223. 
by  clerks  of  court,  recorders,  etc.,  221-2. 
by  attorneys  at  law,  222. 
•  money  reached   by  garnishment  when  no  longer  in  legal  custody, 
224-5,  598-9. 
CUSTOM  OF  LONDON, 

-     the  debtor  was  not  deemed  to  be  in  court  by  his  property,  133. 
he  was  defaulted  for  not  coming,  after  proclamations,  461. 
he  had  a  year  and  a  day,  after  default,  for  appearance,  461. 
his  property  was  not  sold  till  the  creditor  had  given  security,  461. 
DAMAGE, 

suits  against  officer  for  attaching  without  authority,  565. 
for  not  attaching,  566. 
for  not  preserving  attached  property,  569. 
for  not  replevying  property  taken  from  his  custody,  ^67. 
for  delivering  to  second  attacher,  567. 
for  illegally  paying  over  funds  deposited  by  the  garnishee, 

567. 
for  taking  property  from  a  mortgagee,  568. 
for  attaching  exempt  property,  568. 
for  inflicting  any  injury,  568. 
suit  against  garnishee  by  attachment  debtor,  560-1. 
by  attachment  creditor,  5{)3. 
by  stranger  to  the  attachment  suit,  563-4. 
by  assignee,  564. 
suit  against  creditor  for  wrongful  attachment,  440-458. 


618  INDEX. 

BAM.AG'E— Continued. 

cross-action.    (See  Reconvention.) 

suit  ordinarily  must  be  alter  dissolution,  444. 

prematurity,  when  it  may  be  pleaded,  445. 

joint-suit  for  damages,  445-6. 

suit  on  attachment  bobd,  44G-9. 

the  bond  has  reference  only  to  the  proceedings  against  property,  447. 

conditions  of  the  bond,  447-9. 

loss  of  time  and  business  as  items  of  damage,  449. 

debt  due  no  excuse  for  wrongful  attachment,  419-450. 

suit  for  malicious  attachment,  454-8. 

want  of  probable  cause,  454. 

certificate  of  probable  cause,  457. 

malicious  attaching,  455-6. 

burden  of  proof,  455. 

acting  upon  legal  advice,  455. 

what  degree  of  malice  must  be  shown,  456. 

when  suit  barred  by  judgment  in  attachment  case,  458. 

costs  follow  judgment,  450. 

counsel  fees,  451-4. 

taxed  fees  and  costs,  453. 

ex  delicto,  ground  for  attaching  in  some  States,  62,  64. 

measui-e  of,  124. 
DAY, 

for  returning  the  writ,  259. 

when  the  hour  should  be  stated,  486. 

fractions  of,  258,  266,  588. 

dies  non,  138. 

when  Sunday  not  counted  in  the  term  for  service,  184. 
DATES, 

when  amendable,  141. 

in  the  return  of  an  executed  attachment  writ,  258. 
DEBT.     (See  Cause  op  Action.) 

DEATH, 

of  defendant  dissolves  attachment,  439. 

leaves  property  bound  for  debt  though  no  personal  debtor  remains, 

571-2. 
civil  death  by  insolvency  effects  the  same  result,  573. 

DECLARATION.    (See  Petition.) 

DECREE    NISI, 

after  verbal  proclamations,  4G1. 
right  reserved  to  plead  within  a  year,  461. 
practice  in  certain  States,  461-5. 
bond  to  restore,  463-5. 

unnotified  debtor  cannot  have  final  judgment  against  him  or  his 
property,  465-6. 
DEFAULT, 

after  service,  459. 
confirmation  of,  460. 


INDEX.  619 

BEFAVLT— Continued. 

after  verbal  proclamations,  4GI. 

after  seizure  and  publication,  4C>G-7. 

of  garnishee  by  failure  to  answer,  351. 

of  garnishee  not  if  interrogatories  have  not  been  served,  352. 

setting  default  aside,  353,  3bQ-390. 

when  void,  354. 
DEFECTS.     (See  Amendment.) 
DEFINITIONS    AND   DISTINCTIONS,   1-4. 
DELIVERY    BOND.     (See  Fouthcoming  Bond.) 
DEPOSIT, 

fraud ulentl}'  made,  200. 

to  the  credit  of  another,  217. 
DEPUTY, 

duly  appointed  may  attach,  etc.,  181. 
DESCRIPTION, 

of  attached  property.     (See  Return.) 
DIES  NON.     (See  Day.) 
DILIGENCE, 

required  of  the  official  custodian,  280. 
DISBURSING   OFFICER, 

when  not  garnishable,  221-2,  598-9. 

DISCHARGE  OF  THE  GARNISHEE.     (See  Charging  the  Garnishee.) 
DISPOSING  OF  PROPERTY  FRAUDULENTLY, 

ground  for  attaching,  51-60. 
DISSOLUTION    OF    ATTACHMENT,  412-439. 

by  motion  to  quash,  412-417. 

motion  by  defendant  or  other  party  in  interest,  412-415. 

■when  motion  may  be  made,  410. 
-  on  grounds  certain,  416. 

special  notice  of  motion,  417. 

quashing  for  errors  patent,  417-425. 

radical  defects  appearing  of  record,  417. 

ancillary  suit  falls  with  the  principal,  418. 

quashing  because  required  facts  are  wanting,  419. 

alternation,  419. 

truth  of  affidavit  not  in  question,  420. 

bond  fatally  defective  on  its  face,  ground  for  dissolution,  420-2. 

writ  fatall)^  defective  on  its  face,  ground  for  dissolution,  422-3. 

seizure  illegal  or  wanting,  by  return,  ground  for  dissolution,  423-4. 

amending  after  motion  to  quash,  425. 

quashing  on  evidence  beyond  the  record,  425-434. 

■writ  improvidently  issued,  426. 

defendant  must  make  general  appearance,  before  offering  evidence 
beyond  the  record,  420. 

grounds,  420. 

right  to  oppose  attachment,  426. 

methods — motion  and  plea,  427. 

plea  in  abatement,  428-431. 


620  INDEX. 

DISSOLUTION  OF  ATTACHMENT— Co7itinued. 

burden  of  proof,  432-3. 

dissolution  by  final  judgment  for  defendant,  488-9. 

by  such  judgment  in  the  personal  action,  438. 

release  of  property,  a  result,  438. 

effect  of  writ  of  eri'or,  4o8. 

decree  of  restoration,  439. 

death,  439. 
DISSOLUTION  BOND, 

removes  the  lien,  403. 

given  by  defendant  as  of  right,  403. 

may  be  for  release  of  part  of  attached  property,  404. 

prevents  subsequent  claim  by  intervention,  405. 

discharges  the  garnishee,  40G. 

holds  surety  to  amount  stipulated,  407. 

holds  surety  though  pleading  be  amended  in  minor  matters,  409. 

holds  him  after  the  principal's  discharge  as  bankrupt,  407-8. 

when  judgment  may  be  entered  against  surety  without  notice,  410. 

ancillary  suit  not  revived  upon  failure  of  surety,  408. 

null,  if  the  attachment  was  so,  409. 

judgment  for  defendant  releases  surety,  410-411. 
(See  Traverse  after  Bonding.) 
DISTRAINT   ATTACHMENT, 

in  disuse,  1. 

purpose  was  to  compel  appearance,  309-310. 

dissolved  by  personal  appearance,  509. 
DISTRESS.     (See  Distraint  Attachment.) 
DISTRIBUTION.     (See  Concursus.) 
DOMESTIC    ATTACHMENT, 

to  be  treated  generally  as  attachment,  4. 
DOMICILE, 

of  personal  debtor,  39. 

of  corporation,  245. 
DUALITY  OF  THE  ATTACHMENT  SUIT,  13,  19,  133-8,  469. 
EJECTMENT, 

purchaser  protected,  when,  531-3. 

when  statutory  requisites  have  been  disregarded,  532. 

jurisdictionless  judgments  not  authoritative,  533. 

collateral  inquiry,  533. 

eviction  by  an  owner  not  a  party  to  the  att.  proceedings,  534,  548-9 

in  general  proceedings  all  are  deemed  parties,  534. 

what  the  purchaser  should  ascertain  as  to  title,  535. 

no  warranty  in  attachment  sale,  535. 

creditor  liable  for  misrepresentations,  536. 

warranty  in  judicial  sales  for  judgment-owners,  5-37-544. 

method  of  sale  does  not  determine  warranty,  538-540. 

damage  due  purchaser  on  eviction,  543-4. 

third  persons  buying  before  creation  of  the  lieu,  544.  , 

when  Ihe  debtor  may  convey  good  title,  545. 


INDEX.  021 

E:J'ECTMV.'^T— Continued. 

title  conveyed   before  the  curing  of  radical  defects  in  tlie  attach- 
ment,  546. 

judgment  with  jurisdiction  does  not  cure  fatal  defects,  547. 

eviction  of  purchaser  when  publication  was  not  made  to  the  attach- 
ment defendant,  548. 

(See  PuHCHASER,  Warranty.) 
EQUITABLE    ASSIGNMENT,  60. 
ERROR, 

in  the  exercise  of  jurisdiction,  532-3. 
EVIDENCE, 

to  obtain  the  writ,  27,  132. 

to  obtain  the  writ  to  the  satisfaction  of  the  court,  108. 

to  sustain  the  writ,  27,  109. 

(See  Burden  op  Proof.) 
EXCEPTIONAL    ATTACHMENTS, 

what  are,  1. 

to  enforce  legal  liens,  23,  66,  67. 

to  enforce  conventional  liens,  22,  65. 

to  recover  purchase  mouey,  64,  89. 

to  recover  specific  property,  66. 

not  necessary  to  show  any  of  tlie  usual  grounds,  111. 

description  of  property  in   petition   and   affidavit  necessary,  when, 
111. 

rule  of  priority  in  attaching  not  applicable,  111-112. 
EXECUTION, 

should  be  by  writ  of  vend,  ex.,  523. 

Vfhenfi.fa.  is  the  right  writ,  528. 

confined  to  the  attachment-debtor's  property,  524. 

of  partnership  property,  524-5. 

when  met  by  exemption  claim,  525-6. 

aided  by  garnishment  after  judgment,  526-9. 

proceeds  of,  220. 

proceeds  of  may  be  garnished  after,  but  not  before  the  judgment  of 
distribution,  598-9. 
EXECUTOR, 

not  garnishable  for  things  and  funds  in  legal  custody,  224-5. 

liable  when  they  are  no  longer  in  such  custody,  225,  598-9. 

his  rights  under  the  will,  224. 
EXEMPTION, 

of  homestead,  165-6. 

of  property  to  some  stated  value,  165. 

of  whatever  is  not  liable  to  execution,  165. 

waiving  the  right  of,  165-7. 

when  it  should  be  claimed,  166,  525-6. 
EXERCISE  OF  JURISDICTION.     (See  JuRisDiCTi03f.) 
EXPRESSMAN, 

when  not  garnishable,  242. 
FACTORIZING    PROCESS,    (See  Garnishing.) 


622  INDEX. 

FAILURE  TO  DELIVER  ON  CONTRACT, 

an  exceptional  ground  for  attachment,  61. 
FAITH  AND  CREDIT, 

to  judgments  in  States  where  they  were  not  rendered,  337-340. 
FEDERAL  COURTS, 

follow  State  statutes,  326, 

have  separate  jurisdiction,  338. 
FEES, 

may  be  recovered  as  damages,  450-4.     (Se»C0STS.) 
FILING  AFFIDAVIT,  110.     (See  Affidavit.) 
FISCAL  AGENT, 

when  not  garnishable,  243. 
FORCE.     (See  Attaching.) 
FOREIGN  ATTACHMENT, 

that  of  a  non-resident's  property  or  credits,  3. 

credit  may  be  the  res  proceeded  against,  249. 
FOREIGN  CORPORATION, 

reached  through  a  representative  of  its  own  appointment,  246-7. 

makes  oath  by  its  resident  agent,  82. 

statutes  not  uniform  concerning,  35. 
FOREIGN  DEBTOR.     (See  Non-Resident  Debtok.) 
FORTHCOMING  BOND, 

nature  of,  396. 

does  not  deprive  the  court  of  constructive  possession,  397. 

does  not  destroy  the  lien  as  dissolution  bond  does,  397. 

its  obligation  is  to  the  sheriff,  397. 

the  real  obligee  is  the  attaching  creditor,  399. 

should  follow  the  statutory  form  where  any  is  prescribed,  398. 

second  attacher  cannot  replevy,  399. 

may  be  given  to  release  part  of  attached  property,  400. 

usual  obligation,  400-1. 

sureties,  401. 

"replevy  bond"  an  indefinite  term  when  used  to  indicate  the  forth- 
coming bond,  402. 

annulled   by   failure   to  sustain   the  lien  expressly  or  impliedly  by 
judgment,  509. 
FRAUD, 

depends  upon  the  animus  of  the  person  charged,  57. 

intent  to  defraud,  59. 

invalidates  sale,  541. 

in  assignment,  is  ground  for  attaching,  54. 

estops  the  garnishee,  etc.,  216. 

need  not  be  charged  when  non-residence  is  the  ground,  4,  47. 

need  not  be  charged  when  removal  of  property  is  the  ground,  neces- 
sarily, 56. 
FRAUDULENT  CONTRACTING  OF  THE  DEBT  SUED  UPON, 

an  exceptional  ground  for  attaching,  GO-1. 
FRAUDULEN  r    TRANSFER,  57-60,  154-5. 
FRACTIONS  OF  A  DAY.     (See  Day.) 


INDEX.  623 

FREIGHT, 

on  goods  not  lost  by  their  attachment,  186. 
GARNISHEE, 

not  a  party  to  the  issue  between  plaintiff  and  defendant,  344. 

a  party  to  the  side  suit  between  himself  and  plaintiff,  528. 

not  a  mere  wiUioss,  528. 

non-resident  temporarily  in  the  State  not  to  be  made  a  garnishee, 
238. 

judgment  debtor  may  be  garnishee,  when,  59G-8. 

legal  custodi'in  not  generally  garnishable,  218-225. 

legal  custodian  may  be  garnishee,  "when,  598-9. 

public  corporations  not  made  garnishees,  230-339. 

private  corporations  may  be  made  garnishees,  239-250. 

as  possessor,  must  be  in  control  of  debtor's  property,  194. 

as  debtor,  must  owe  M'ith  certainty,  197. 

may  claim  exemption  for  the  defendant,  when,  515. 

should  not  waive  service,  2G5. 

cannot  object  to  irregularities,  etc.,  515,  518. 

is  like  a  depositary,  200. 

not  ordinarily  entitled  to  sell  what  he  holds,  291-3,  294. 

may  move  to  dissolve  attachment,  when,  415. 

not  condemned  to  pay  more  than  the  judgment  against  defendant, 
514. 

not  condemned  to  pay  before    final  judgment   against   defendant, 
513,  510. 

discharged  for  what  reasons,  514.  ■* 

discharged  by  reversal  of  judgment  against  defendant,  517. 

protected  by  the  judgment,  520-3. 

may  plead  payment  in  subsequent  suit  by  his  former  creditor,  520. 

may  not  plead  garnishment,  when,  521-2. 

sued  subsequently  to  the  attachment  suit,  560-5. 
GARNISHING, 

in  general,  190-339. 

under  the  writ  of  attachment,  190. 

under  the  writ  of  garnishment,  192. 

upon  special  affidavit,  when,  193. 

upon  separate  allidavit  and  bond,  when,  193. 

by  summons  and  interrogatories,  191. 

by  trustee  process,  193. 

of  defendant's  property,  possessed  and  controlled  by  a  third  per- 
son, 194. 

of  credits  due  defendant  from  a  third  person,  certain  and  payable 
in  money,  197-8. 

of  interest  augmenting  the  credit,  209. 

of  deposits  due,  etc.,  300. 

of  joint  debts  and  joint  and  several  debts  due  to  defendant,  205. 

not  conditional  obligations,  201-2. 

not  property  or  credits  legally  assigned,  209.     (See  Assignment.) 

not  for  surplus  value  of  mortgaged  property,  204. 


C24  INDEX. 

QARl:ilSlimG— Continued. . 

not  property  or  credits  held  officially,  218-225.     (See  Custody  op 
THE  Law.) 

not  partnership  credits  as  credits  due  to  one  of  the  partners,  204-5 

not  property  in  trustee's  hands  to  pay  creditors,  213-215. 

when  maker  of  note  liable  as  garnishee,  206-8. 

when  wages  and  salaries  exempt,  208. 

when  legal  custodians  are  not  garnishable,  218-225,  598-9. 

when  non-resident  third  possessors  are  garnishable,  S37. 

when  partnership  is,  though  some  members  nun-resident,  227. 

when  foreign  corporation  is  through  resident  agent,  2.18. 

when  judgment  debtor  may  be  garnished,  596-8. 
GAKNISHING  TO  AID  EXECUTION, 

in  general,  526-529. 

after  judgment  against  defendant,  5'?6. 

defeated  by  defendant's  satisfying  judgment,  527. 

garnishee-in-execution  a  party — not  a  witeess,  528. 

not  jointly  condemned  with  defendant,  518-9. 

should  not  be  condemned  in  a  specific  sum,  when,  51B 

judgment  against  garnishee  may  be  set  aside,  when,  519. 
protects  him,  520-2. 
IMPOUNDING    NOTES,  169. 
IMPROVIDENT    ATTACHMENT, 

may  be  set  aside,  420, 

INADEQUACY  OF  ORDINARY  PROCESS, 

justifies  the'extraordiuary,  31,  113. 
INCORPOREAL    THINGS, 

may  bear  a  lien,  173. 

interest  in  land,  173. 

right  of  redemption,  173. 

may  be  proceeded  against,  248. 
INDEMNITY    BOND, 

may  be  required  by  attaching  oflScer,  147. 

amount  stipulated,  149. 

does  not  relieve  officer  from  any  duty,  150. 

without  it,  indemnity  may  be  implied,  148. 

may  be  sued  upon,  when,  566. 
(See  Sheriff.) 
INHABITANT, 

synonymous  with  "resident"  in  attachment  laws,  39. 
INJUNCTION, 

of  execution  by  garnishee,  519. 
IRREGULARITIES, 

of  service  waived  by  the  answer,  266,  392-3. 
INSOLVENCY, 

with  reference  to  business  done  by  the  insolvent,  56. 

with  reference  to  assignment,  213-4. 
INSTRUCTIONS, 

to  seizing  officer,  149. 


INDEX.  62.J 

A 

INSURANCE    COMPANY, 

liable  to  garnislmient  for  sums  cine  on  policy,  241. 

not  for  loss  by  fire  where  company  may  rebuild,  241. 

atjents  not  aarnishable  for  company's  debts,  341. 

when  subject  to  foreign  attachment,  343. 
INTENT, 

in  removing,  49,  53,  53,  55,  93. 

in  coming  into  the  State,  45. 

to  avoid  process,  48,  53. 

to  defraud  creditors,  50,  53,  54. 

may  be  inferred  from  circumstances,  51,  57-8. 

in  transferring  property,  57. 

in  prelerring  certain  creditors,  59. 

charged  in  the  allidavit,  93. 
INTERMIXED  GOODS, 

may  be  all  temporarily  seized,  157. 

held  in  common,  how  attached,  157. 
INTERROGATORIES, 

to  the  garnishee,  348-351.    . 

confined  to  facts  of  debt  to  the  defendant  or  property  or  both,  848 

should  not  be  general  as  to  the  liability,  350. 

addressed  to  corporations,  350. 

may  be  followed  by  additional  questions,  351. 
(See  Charging  the  Garnishee.) 
INTERVENTION, 

unnecessary,  when,  470-4. 

by  persons  interested  only,  474,  480,  483. 

not  ordinarily  by  lien-holder,  474. 

by  lieu-holder  in  general  proceedings  against  property,  475-6. 
'     by  junior  attacher,  when,  476-9. 

after  junior  has  established  his  own  levy,  478. 

with  charge  of  fraud,  478-9. 

by  dispossessed  owner,  480. 

when  title  is  at  issue,  481. 

by  constructive  possessor,  483. 

by  assignee  in  bankruptcy,  484. 

by  parties  forced  into  court,  484. 

bonding  by  intervening  claimant,  482. 

INVENTORY, 

of  attached  goods,  255-6. 

JOINT  DEBTORS, 

must  both  be  served,  205. 

of  defendant  may  plead  separate  credits  as  set-off  when  summoned 
as  garnishees,  367. 

JUDICIAL  SALES, 

when  warranted,  537-544. 
when  not  warranted,  535-537. 

40 


626  INDEX. 

JUDGMENT, 

on  confession,  as  to  the  lien,  AOO. 

when  final  as  a  personal  decree  after  issue  joined,  506. 

with  lien  on  attached  property  judicially  recognized,  50G-513. 

with  lien  implied,  506-7. 

where  the  form  should  be  general,  507-8. 

releasing  obligors  on  forthcoming  bond  by  not  sustaining  the  lien, 

509. 
without  prescribed  form,  though  always  personal  in  form,  511. 
when  greater  than  appraised  value  of  released  property,  513. 
appealed,  513. 

final  against  defendant  before  rendition  against  garnishee,  513-530. 
final  against  defendant  protects  garnishee,  530-1. 
when  res  adjudicata,  531,  547. 

JURISDICTION, 

of  diflFerent  degrees,  300-803. 

of  different  significations,  301. 

over  the  debtor,  by  service  or  his  general  appearance,  304. 

not  by  publication,  7,  304-6. 

not  by   publication   and   attachment  of  his  property,  7,  8, 
309-313. 

not  sufficient  for  the  creation  of  the  lien,  323-5. 

does  not  extend  to  his  property,  550. 
over  property,  by  seizing  it  and  serving  or  notifying  the  debtor- 
owner,  312-316. 
over  property,  requires  continued  custody,  313-313. 

requires  other  notice  than  seizure,  313-6. 

depends   upon  compliance   with   the  statutory  conditions 
under  which  it  is  conferred,  331-8,  548. 
special,  in  attachment  cases,  329-334. 

not  presumed,  330-3. 

not  included  in  general  jurisdiction,  329-334. 

should  appear  of  record,  331-3. 

when  not  appearing  of  record,  judgment  may  be  attacked 
collaterally,  333. 
not  acquired  by  usurpation,  547,  603. 
not  extra  territorial,  334,  338. 
of  courts  in  other  States,  open  to  inquiry,  336-7. 

when  entitled  to  "faith  and  credit,"  340. 
federal,  subject  to  State  statutes  in  attachment  suits,  335. 
between  plaintiff  and  interpleader,  48.1. 
need  not  be  averred  in  the  affidavit,  80. 
of  ancillary  proceeding  may  be  wanting,  yet  that  of  the  principal 

suit  be  maintainable,  76. 
with  respect  to  the  affidavit,  76-79,  87. 
with  respect  to  the  writ,  78. 
over  garnishee,  conflict  of,  355. 
excepted  to  by  special  appearer,  388-393. 
excepted  to  or  denied  in  answer  by  general  appearer,  392-394. 


INDEX. 


G27 


JURISDICTION— Co«f?/i«e(?. 

personal  judgment  without  citation  or  appearance,  null,  33"). 

statutes  nugatory  which  attempt  to  authorize  judgment  against  per- 
sons not  reached  by  process,  339. 

over  perishable  goods,  317-8. 

in  foreign  attachments,  on-default,  319. 
KEEPER, 

is  actual  custodian  under  the  sheriff,  282, 

may  be  the  defendant's  warehouseman,  288. 

may  be  receiptor,  283-4. 

when  property  may  be  left  in  defendant's  hands  with  the  construc- 
tive possession  in  the  court,  288-290. 


LAND, 

LEVY. 

LIEN, 


how  attached,  282. 
of  non-resident,  325.  • 
(See  Attaching.) 

created  and  enforced  by  attachment,  1,  61. 

by  garnishment,  587-59G. 
non-existent  before  attaching  as  a  general  rule,  20-21. 
hypothetical,  21,  544,  580-582. 
created  by  law  on  prescribed  conditions,  22. 
to  secure  ordinary  debt,  577-530. 
for  funds  advanced,  498-9. 
when  existing  before  attachment,  65-7,  316. 
for  labor,  etc.,  on  logs,  07. 

specific,  suits  to  recover  purchase  money,  etc.,  00. 
specific,  suits  on  mechanic's  liens,  etc.,  111. 
cannot  be  created  by  proceedings  in  a  court  not  em.powered  to  give 

judgment  on  the  debt,  302. 
already  securing  debt  not  usually  enforceable  by  attachment,  473. 
holders  of  mature  liens  no  cause  to  intervene,  472-5. 
lose  nothing  by  not  intervening,  47G. 
should  intervene  in  general  proceedings  in  rem,  474. 
lost  by  release  under  dissolution  bond,  404-6. 
not  resuscitated  after  being  lost  by  bonding,  408. 
of  junior  attacher  not  ordinarily  ground  for  intervening  in  the  suit 

of  the  senior,  476-8. 
must  be  established  before  being  the  subject  of  intervention,  where 

intervention  upon  it  is  allowed,  478. 
may  be  contested  by  junior  attacher  on  the  charge  of  fraud,  478. 
may  be  destroyed  by  vacation  of  attachment  for  fraud,  479. 
holders  of  may  intervene  to  regain  possession  of  that  on  whi^^h  the 

lien  rests,  480. 
holders  of  may  intervene  in  bankruptcy  proceedings,  when,  505-6. 
takes  rank  in  the  order  of  the  levy,  as  a  general  rule,  4S5. 
equal  in  rank  with  those  simultaneously  created,  485,  48(5,  492. 
superior  in  rank  to  those  on  later  attachments  of  the  same  day, 

when,  486. 


628  INDEX. 

LIEN — Conlinned. 

upon  goods  and  credits  in  third  hands  from  the  date  of  service  on 
the  garnishee,  487-8. 

first  created  by  garnishment  ranks  those  later,  488-9. 

abandoned  by  first  attacher  does  not  atl'ect  rights  of  other  attachers 
489. 

limited  as  to  duration,  when,  489. 

lost,  cannot  be  regained  in  equity,  490. 

requires  to  be  perfected  by  judgment,  490. 

cannot  be  perfected  by  compromise  with  defendant  so  as  to  rank 
that  of  a  junior  attacher,  491. 

equal  requires  equal  share  of  proceeds,  493-4. 

not  good  against  an  equitable  title,  502. 

holds  good  over  subsequent  mortgage,  496. 

holds  good  over  older  unrecorded  mortgage  in   absence  of  notice. 
495. 

with  respect  to  imrecorded  mortgage,  with  notice,  496. 

marshalled  with   other  liens  of  any  description,  ordinarily  takes 
rank  by  date,  496,  529,  530. 

on  partnership  property,  498. 

should  be  recorded,  when,  499. 

of  creditor  in  possession,  when  superior  to  that  by  attachment,  499 

by  convention,  created  by  debtor,  after  issue  of  attachment,  499. 

cannot  displace  existing  liens  or  rights,  500. 

displaces  prior  fravidulent  assignment,  503. 

perfected  by  judicial  decree,  506-513. 

general,  on  the  decedent's  estate  for  his  debts,  573. 

authorized,  because  of  property-indebtedness,  573. 

authorized  under  conditions  and  securities,  574-7. 

not  specific,  when,  577. 

justified  and  made  necessary  by  the  misconduct,  etc.,  of  the  debtor, 
578. 

by  garnishment,  not  unjust,  when,  579-580. 

contingent,  580. 

completed  by  the  retroaction  of  the  judgment,  581. 

merged  in  the  judgment,  582-587. 
LOG-LIEN.    (See  Lten.) 

>IALICI0US  ATTACHMENT.     (See  Damages.) 
MANIPULATION, 

not  necessary  in  attaching,  176. 
MARRIED  WOMAN, 

her  domicile  that  of  her  husband,  38. 

her  separate  property  may  be  attached  on  statutory  grounds  when 
she  does  business  in  her  own  name,  158. 

money  due  her  on    insurance   not  attachable  in  hands  of  the  insur- 
ance company  in  a  suit  against  her  husband,  241. 

may  be  made  garnishee  in  a  suit  against  her  husband,  528. 
MARSHAL, 

oflicer  of  hiS  difltaict  rather  than  of  the  court,  134. 


INDEX.  62  D 

MA.HSU  AL— Continued. 

trespasser  by  divesting  chattel  mortgagees  of  their  possession,  140. 

trespasser  by  any  wrongful  seizure,  78. 

may  be  sued  on  his  official  bond,  550. 
(See  SiiEUiFF.) 
MECHANIC'S  LIEN, 

attachment  to  enforce,  exceptional,  66. 
MINISTERIAL  ACT, 

may  be  judicial,  134 
MISNOMER.  (See  Name.) 
MONEY    DEMAND, 

a  cause  of  action,  64. 
MORTGAGE, 

senior  first  satisfied,  471. 

junior  sells  whole  property,  473. 

secure  without  intervention  in  attachment  suit,  473. 

unrecorded,  when  to  be  respected,  4U5-6. 
MORTGAGED    CHATTELS, 

not  directly  attachable,  146. 
MORTGAGEE, 

may  sue  ofiicer  for  disturbing  his  possession,  553. 

MOTION.    (See  Dissolution  of  Attachment.) 
MUNICIPAL  CORPORATION.    (See  Corporation  and  City.) 

NAME, 

when  misnomer  may  be  corrected,  141,  517. 

in  property  description,  254-5. 

omission  of,  in  affidavit,  103. 
NEGOTIABLE   NOTE.    (See  Chose  in  Action.) 

NEWSPAPER, 

publishing  notice  to  debtor,  of  attachment,  273. 
NOMINAL  ATTACHMENTS, 

without  validity,  309-310. 

NON-RESIDENTS, 

who  are,  34-43. 

need  not  be  foreign  residents,  35. 

have  no  place  at  which  summons  may  be  left,  36. 

intending  to  reside  within  the  State,  37-8. 

domicile,  38-9. 

business  place,  40. 

may  have  their  property  attached  when  they  cannot  be  reached,  46. 

may  be  garnished  if  in  the  State  with  defendant's  property,  227. 

partnership  may  be  garnished  though  some  members  non-resident, 

227. 
foreign  corporation  may  be  garnished  through  its  own  constituted 

resident  agent  for  property  in  the  Slate,  or  debt  payable  there, 

228. 
temporarily  in  the  State,  not  ordinarily  garnish  able,  228. 
NOTE.     (See  Promissory  Note  and  Chose  in  Action.) 


680  INDEX. 

NOTICE, 

of  intended  suit  by  the  creditor  to  the  debtor  of  the  contemplated 

defendant,  without  effect,  215. 
of  previous  conveyance,  500-502. 
of  unrecorded  mortgage,  494-5. 
of  nullity  of  title,  543. 
■with  respect  to  the  rank  of  liens,  494-8. 
by  recordation,  496,  499,  500-2. 

required  in  admiralty  proceedings  when  they  are  in  rem,  315. 
in  other  proceedings  in  rem,  316. 
in  limited  proceedings,  such  as  attachment,  327. 
necessary  to  the  power  to  try  an  attachment  case,  when,  308. 
published,  not  sufficient  to  justify  personal  judgment,  304-312. 
if  not  given  in  foreign  attachment,  final  judgment  cannot  be  ren- 
dered, 319. 
necessarily  jurisdictional  in  default  of  service,  320. 
•with  respect  to  the  exercise  of  jurisdiction,  320. 
omission  of,  321,  325. 

unquestionable  after  general  appearance,  392,  395. 
must  be  shown  by  the  prior  lien-hulder,  when,  499. 
want  of,  may  be  supplied  as  to  defendant  yet  not  hold   good  as  to 
third  persons,  when,  546-7. 
(See  Publication.) 
NULLITY, 

of  attachment  proceedings  for  want  of  publication,  271. 

for  disregard  of  any  condition   upon   which   the  statutory 
authorization  depends,  29. 
of  judgment,  543. 
OATH.     (See  Affidavit.) 
OFFICER.     (See  Sheriff.) 
OFFICIAL  BOND.    (See  Sheriff.) 
OMISSIONS, 

may  be  supplied,  when,  141. 
ORDINARY   CREDITORS, 

are  the  usual  beneficiaries  of  the  attachment  remedy,  31. 
PAROL  EVIDENCE, 

cannot  contradict  officer's  return,- 264. 
admissible  to  prove  facts  not  returned,  266. 
PARTNER, 

may  prefer  his  creditors  to  those  of  his  firm,  59-60. 

interest  in  firm,  after  payment  of  firm  debts,  attachable,  155. 

may  have  firm  property  attached  as  his  if  his  associate  is  a  dormant 

partner,  107. 
cannot  bind  the  firm  by  signing  as  surety  without  authority,  122. 
PARTNERSHIP, 

goods  cannot  be  attached  and  removed  in  a  suit  against  a  member 

of  the  firm,  155. 
goods,  when  attachable  in  a  suit  against  a  partner,  15G. 
goods  of  dissolved  firm,  when  attachable,  156. 


INDEX.  631 

PAUTNETISUIP— Continued. 

credits  not  subject  to  garnishment  in  a  suit  against  one  of  the  firm, 
when,  204. 

may  be  garnished  in  a  suit  against  a  member,  wlien,  20.'5. 

answer  of  the  garnishee,  that  he  owes  the  firm,  not  pertinent  when 
the  suit  is  against  a  member,  205. 

may  be  garnished  though  some  members  are  non-residents,  227. 

may  have  its  assets  condemned  after  the  discharge  of  a  partner,  469. 

assets  under  attachment  lien  not  affected  by  a  junior  attachment  in 
a  suit  against  a  partner,  487. 

property  mortgaged,  498. 

property  assigned,  50G. 

property  ia  execution,  524,  568. 

when  sued  lilce  a  corporation,  600. 
PERISHABLE   PROPERTY, 

when  not  susceptible  of  removal,  175-6. 

may  be  sold  under  interlocutory  order,  295. 

its  cash  proceeds  represent  it,  296. 

sale  of,  not  dependent  upon  jurisdiction  to  try  the  cause,  297. 

may  be  sold  prior  to  publication  notice,  317. 
PERSONAL  SUIT, 

is  the  form  of  attachment  proceeding,  5. 

in  form,  is  against  property  in  eflect  when  there  is  no  defendant  in 
court,  though  notified  after  seizure,  7. 
PETITION, 

is  necessary  to  the  attachment  proceeding,  68. 

what  it  must  contain,  69. 

when  it  should  be  filed,  70. 

alike  whether  the  judgment  be  in  efl"ect  against  property  only,  or 
personal,  or  both,  72. 

must  allege  the  debt,  73. 

may  be  amended,  75. 
POWER  OF  ATTORNEY, 

to  sign  attachment  bond,  120. 
POSSESSION.    (See  Custody.) 
PREMATURITY, 

when  a  defence  to  suit  on  attachment  bond,  445. 
PRESUMPTION, 

in  favor  of  the  attaching  officer,  262. 
PLACE  OF  BUSINESS, 

with  reference  to  serving  attachment,  40-41, 

PRIORITY  OF  LIEN, 

is  in  the  order  of  the  levies,  485. 

is  in  the  order  of  the  garnishments,  488-9. 

anomalous  practice,  485. 

second  attachment  laid  on  the  first,  487-8. 

according  to  date  as  between  attachment  and  mortgage  liens,  494. 

unrecorded  mortgage,  when  entitled  to  rank,  495-6. 

when  creditor  holds  debtor's  property  as  security,  499. 


632  INDEX. 

PRIORITY  OF  Lmi>i—Contmued. 

attachment  lien  not  affected  by  subsequent  assignment,  503. 

junior  over  senior,  when,  548. 

when  dependent  on  time  of  filing  petition,  70. 
(See  Lien.) 
PRIVIES, 

bound  by  the  judgment,  531,  547. 

heirs  of  parties  bound  as  privies'  549. 

junior  attacher  not  a  privy  to  the  senior's  suit,  479, 

may  be  both  to  interest  and  contract,  1115-107. 

purchasers  of  defendant  not  his  privies,  when,  547. 
PRIVILEGE, 

on  attached  property,  506-513. 
(See  Lien.) 
PROBABLE  CAUSE, 

for  attaching,  456-7. 
PROCEEDINGS  AGAINST  A  THING, 

limited  and  general,  distinguished,  405-6,  558. 

limited  when  under  the  attachment  laws,  14,  15,  406. 

not  determined  by  the  universality  of  the  judgment,  16. 

not  inclusive  of  the  suit  to  fix  personal  status,  16,  17,  18,  306. 

not  governed  by  the  personal  form  of  attachment  suits,  19,  20,  73. 

when  the  debtor  is  not  in  court,  71-72. 

general,  against  forfeited  property,  when  seizure  precedes  suit,  79. 
require  no  summons  to  any  defendant,  129. 
require  notice,  314-5,  326-8. 
allow  lien-holders  to  intervene,  474-5. 
PROCESS.     (See  Summons,  Writ  of  Attachment.) 
PROCLAMATIONS, 

required  before  default  by  the  Custom  of  London,  133. 
PROMISSORY  NOTE, 

not  directly  attachable,  as  a  general  rule,  153. 

not  to  be  proceeded  against  as  property  or  credit,  1C8. 

not  a  chose  in  possession,  169. 

not  "goods"  or  "efi'ects,"  169. 

maker  of,  when  garnishable,  206-8. 

obligation  payable  in  negotiable  notes  not  reached  by  garnishment, 
217. 

impounded,  169. 

after  maturity,  217,  364 
PROPERTY  LIABILITY, 

for  the  debts  of  its  owner,  23,  31,  570-577. 
PROPERTY  IN  COURT.     (See  Custody  ) 
PROTECTION  OF  THE  OFFICER, 

by  valid  writ  rightly  executed,  145-7. 

by  indemnity  bond,  147. 
PROTHONOTARIES, 

not  garnishable  as  legal  custodians,  221. 


INDEX.  G33 

PUBLICATION, 

order  for,  208. 

what  it  should  contain,  2G9. 

di tiers  from  suiumons,  2G9-270. 

not  a  command  but  an  invitation,  73. 

not  constructive  service,  270-2. 

not  substituted  service,  72. 

necessary  on  failure  of  service,  271. 

jurisdictional  as  a  statutory  condition,  273. 

not  rendered  unnecessary  by  seizure,  272-3. 

should  be  published,  how  often,  272. 

how  long,  274. 
should  be  of  record,  275-6,  278. 

nugatory  without  seizure  and  detention  of  property,  277. 
must  be  to  all  persons,  when  the  proceeding  is  general,  277. 
(See  Notice.) 
PURCHASE   MONEY, 

in  suit  for,  petition  and  afRdavit  must  describe  the  property  sold,  89. 
must  state  the  price,  89. 
attachment  for,  exceptional,  1. 
PURCHASER, 

must  look  to  the  jurisdiction  of  the  court  ordering  the  attachment 

sale,  531-2. 
cannot  hold  if  statutory  requisites  have  been  disregarded,  338-4. 
not  affected  by  error  in  the  exercise  of  jurisdiction,  533. 
not  affected  by  want  of  jurisdiction  in  the  ancillary  proceeding,  in 
a  contest  with  attachment  defendant,  if  there  was  jurisdiction 
in  the  main  case,  533. 
may  be  ejected  by  stranger  to  the  judgment,  when,  534. 
may  recover  of  attaching  creditor  for  false  representations,  when, 

536. 
buys  subject  to  existing  liens,  535. 

(See  Warranty,  Ejectment.) 
QUASHING.     (See  Dissolution.) 
QUASI  CORPORATION, 

liable  to  attachment  and  garnishment,  234. 
RAILROAD  COMPANY, 

when  its  funds  not  attachable  in  fiscal  agent's  hands,  343. 

bonds  to  be  exchanged  for  stock  certificates  attachable  in  the  hands 

of  a  trustee,  243. 
where,  though  foreign,  it  may  be  garnished  as  a  domestic  corpora- 
tion, 244. 
mortgaged,  earnings  garnishable  in  suit  against  a  mortgagor,  when, 

2^14. 
shares,  when  attachable,  245-8. 
(See  Corporations.) 
RECEIPTOR, 

appointed  by  and  holding  under  the  sheriff,  279,  283. 
receipt,  284^ 


634  INDEX. 

"RECElFTOn— Continued. 

subordinate  possession,  284. 

may  destroy  the  lien  by  delivery  to  defendant,  285-7. 

lien  not  destroyed  while  the  court  has  constructive  possession  and 
control,  287. 

sheriff  may  regain  possession,  should  receiptor  wrongfully  deliver 
to  the  defendant,  285-6. 
RECEIVER, 

for  foreign  corporation  must  become  a  party  to  the  suit  before  act- 
ing therein,  250. 
RECONVENTION, 

a  cross  suit  set  up  in  defendant's  answer,  440. 

a  demand  for  damages  for  wrongful   attachment   pleaded   in  the 
attachment  case,  440. 

the  onus  on  the  pleader,  who  is  "plaintiff  in  reconvention,"  440-3. 

attachment  may  be  vacated  and  damages  awarded  at  the  same  time, 
441. 

common  practice  in  several  States,  441. 

actual  and  exemplary  damages  claimed,  where,  441-2. 

called  "counter  claim,"  441-3. 

recovery  on  the  attachment  bond,  443. 
RECORD, 

should  show  service,  etc.,  in  the  county,  when,  334. 

of  suit  only  against  property  in  effect  not  admissible   against  the 
debtor  in  another  action,  8. 

of  published  notice  to  the  debtor,  275. 

piesumed  to  be  correct,  when,  328. 

of  jurisdictional  facts  may  be  examined,  when,  33G-7,  340. 

must  show  compliance  with  all  jurisdictional  requisites,  330-1, 
RECORDER, 

not  garnishable  as  legal  custodian,  221,  298. 

RECOUPMENT.     (See  Reconvention.) 
REMOVAL  OF  PROPERTY, 

permanent,  43,  49. 

temporary,  43-5. 

to  another  county,  49,  50-3. 

to  another  State,  55. 

intent  to  remove,  53,  53. 
REMOVAL  OF  ATTACHMENT  SUIT  TO  FEDERAL  COURT, 

moved  by  special  appearer,  393. 

on  the  authorized  grounds,  like  other  suits,  344. 

allowed   though  plaintiff  and   garnishee  are  citizens  of  the  same 
State,  344. 
REPLEVIN, 

against  attaching  officer,  553-5(50. 

not  issuable  by  another  court  to  take  property  from  the  court  having 
custody,  553-6. 

what  remedy  when  replevin  not  allowed,  557. 

usual  remedy  in  State  courts,  5o7. 


INDEX.  635 

REVLEYm—Conttnued. 

exceptional  water-craft  attacliments,  558. 

right  of  States  to  geutM-al  proceedings  against  property,  559-5G0. 
not  by  inlerveuor  against  officer  after  Lis  plea  has  been  overruled, 
4S4. 

RES  JUDICATA.     (See  Judgment,) 
RESTORATION, 

expressed  or  implied  in  judgment  for  defendant,  438-9. 

should  follow  judgment  for  defendant,  434. 

of  attached  jn-operty  should  be  ordered  when  the  judgment  is  only 

personal,  511-513. 
general  practice,  513. 
RETROACTION, 

of  amendments,  491-3. 

of  attachment-judgment,  to  perfect  the  lien,  581. 
of  order  charging  garnishee,  to  the  time  of  service,  487. 
of  amendment  to  writ,  when,  491-3. 
of  sheriff's  demand  upon  the  debtor,  503. 
RETURN  OF  PROCESS, 

should  contain,  what,  251.  • 

should   state   ownership,  value,   time   and   mode  of  attaching,  etc., 

251-3. 
should  report  only  debtor's  property  or  credits,  as  attached,  253. 
creates  presumption  that  the  attached  property  is  the  debtor's,  253. 
cannot  affect  the  title,  354. 
should  describe  the  property,  2')4-5. 
should  be  accompanied  by  an  inventory,  when,  256. 
should  show  enough  attached  to  meet  the  demand,  256-7. 
should  have  certificate  of  appraisement  endorsed  upon  it,  when,  257. 
should  give  the  name  of  any  corporation  officer  served,  257. 
should  show  notice  and  writ  left  with  tenant  where  land  is  attached, 

358. 
should  show  service  on  the  person  against  whom  the  process  was 

directed,  267. 
should  give  exact  date  of  seizing,  258. 
should  give  exact  date  of  attaching  in  third  hands,  267. 
should  give  names  of  witnesses  of  the  seizure,  when,  258. 
may  be  made  at  any  hour  of  the  day,  259. 
is  lodged  usually  with  the  clerk,  259. 
must  show  authority  when  made  by  a  deputy,  259. 
m.ust  be  officially  signed,  360. 
amendable  by  officer  before  filing,  260-1. 
amendable  by  officer  by  leave  of  court,  when,  261. 
not  amendable,  in  what  particulars,  261. 
with  respect  to  errors  and  omissions,  263. 
with  respect  to  reasonable  intendment,  262. 
renders  officer  liable  to  damages,  when,  263. 
cannot  be  contradicted  by  parol  testimony,  264 


636  INDEX. 

RETURN  OF  THOCESS— Continued. 

not  conclusive  between  parties   as    evidence  of   the   facts  stated, 

264-5. 
cured  of  irregularities  by  the  answer,  266. 

does  not  usually  show  what  property  or  credit  has  been  attached  in 
third  hands,  267. 
SALARIES, 

of  public  officers,  when  exempt  from  garnishment,  239. 
of  others  as  wages,  when  exempt  from  garnishment,  203. 
SALE, 

by  the  debtor  before  seizure,  500-502. 

before   amendment  of   radical  defects    in  the   attachment 
proceedings,  544-550. 
invalidated  by  fraud,  541. 
mistake,  541. 

want  of  consideration,  536. 
if  without  an  object  of  sale,  542. 
judicial,  provoked  by  judgment  owner,  warranted,  537-544. 
in  attachment  proceedings  should  be  by  Dend.  ex.,  522-5. 
of  perishable  property  by  the  court  as  custodian,  295. 

does  not  imply  jurisdiction  over  it  to  try  the  ancillary  suit, 
297. 
returned  by  sheriff  no  evidence  that  the  property  sold  belonged  to 
defendant,  265.     (See  PuiicnASEK.) 
SCHOOL  DISTRICT, 

not  garnishable,  236. 
SEAL, 

error  respecting,  when  amendable,  141. 
SECRETING, 

goods  or  person  to  avoid  process,  49-51. 

SEIZURE, 

not  notice  in  attachment  suits,  272-3. 

does  not  answer  as  notice  in  other  suits  against  property,  326-8. 

creates  no  presumption  of  the  statutorily  required  notice,  315-6,835. 

indispensable  to  suits  against  things,  303. 

cannot  be  omitted,  by  statutory  authorization,  in  property  actions, 
339. 

must  be  followed  by  the  detention  of  the  thing  attached,  313. 

not  altogether  analogous  in  attachment  suits  to  that  in   general 
proceedings  in  rem,  316. 

gives  no  jurisdiction  to  try  the  cause,  322. 

follows  application  for,  in  attachment  suits,  but  precedes  the  infor- 
mation in  general  proceedings,  423. 

is  official  misconduct,  when,  551. 
(See  Attaching.) 
SEQUESTRATION, 

in  exceptional  attachments,  23. 

of  personal  propertj'  when  the  sheriff  has  been  divested  and  cannot 
deliver  it  under  order,  65,  66,  110. 


INDEX.  G37 

SETIVICE.    (See  Summons,  Attaching,  Return  of  Process. 
SHERIFF, 

is  an  officer  of  the  county,  134. 

holds  attached  property  under  tlie  court,  279. 

cannot  pay  over  funds  wilh(nit  order,  507. 

is  authorized  to  appoint  sub-custodians,  279. 

not  bound  to  turn  property  over  to  a  receiptor,  284. 

should  exercise  diligence  in  caring  for  propert}%  280. 

may  recover  indemnity  from  the  plaintiff,  when,  147-150,  566. 

must  restore  property  to  defendant,  when,  281. 

liable  for  injury  done  to  property  under  seizure,  566-7. 

may  leave  property  with  defendant,  when,  288-9. 
under  bond,  396-8. 

may  replevy  property  taken  from  his  custody,  567. 

has  title  from  demand,  where,  503. 

liable  for  not  attaching,  when,  566. 

may  defend  against  an  assignor  and  show  fraud  in  the  assignment, 
503. 

liable  to  suit  on  his  official  bond,  550. 

involves  his  sureties  by  trespass  under  color  of  office,  551. 

liable,  with  his  sureties,  for  molesting  lien-holders,  552,  568. 

liable  to  action  of  replevin,  when,  553-560.     (See  Replevin.) 

same  rules  applicable  to  constables,  U.  S.  marshals  and  other  attach- 
ing officers,  550-560. 

(See  Indemnity  Bond,  ATTAcniNG,  Garnishing.) 
SIGNATURE, 

to  the  affidavit,  83,  103. 

to  the  jurat,  84. 

to  the  attachment  bond,  131-3. 

to  the  return,  260. 
SIMULTANEOUS  SEIZURES, 

create  equal  liens,  487,  492-3. 

levies  returned  as  executed  on  the  same  day  without  any  designa- 
tion of  hours,  deemed  simultaneous,  486. 

the  limited  practice  of  deeming  liens  equal  when  the  levies  are  on 
the  same  day,  485. 
SLANDER, 

excepted  as  cause  for  attachment,  63. 
SPECIFIC  ATTACHMENTS, 

to  enlbrce  existing  liens,  65-7. 

by  the  vendor  for  unpaid  price,  66. 

by  the  sheriff  to  regain  custody,  06. 

by  laborer  to  enforce  lien  upon  logs,  67. 

lien  not  created  by  the  attachment,  111-113. 
STATE, 

not  garnishable,  230-233. 
CTATUTES^ 

authorizing  attachment,  uniform  in  prominent  features,  24, 81, 34, 64. 

are  the  only  authority  for  the  remedy,  24,  321. 


638  INDEX. 

STATUTES— Continued. 

must  be  followed  or  proceedings  void,  24,  29,  325. 

should  be  shown,  in  sheriff's  return  of  writ,  to  have  been  followed, 
424. 

how  construed,  27. 

not  supplied  by  presumption  of  authority,  323. 

give  the  right  of  seizure,  H24. 

require  publication  as  well  as  seizure,  325. 

observed  by  federal  courts,  325. 
STAY  ORDER, 

to  delay  proceedings  can  be  moved  only  by  a  general  appearer,  391. 

to  delay  sale  of  attached  property,  464. 

when  the  debt  is  not  due,  408. 
STOCKS, 

not  attachable  as  in  the  hands  of  a  banking  or  other  corporation 
after  delivery  to  the  shareholder,  240. 

owned  by  a  non-resident,  not  attachable  as  in   the  hands  of  the 
domestic  corporation  which  issued  them,  245. 

nor  of  foreign  corporation,  by  service  on  .its  agent,  245. 

not  changed  as  to  their  situs  by  the  company  doing  business  in 
another  state,  245-8. 

not  paid  for  render  the  subscriber  garnishable  in  a  suit  against  the 
company  to  which  payment  is  due,  250. 
SUBROGATION, 

of  creditor  to  his  debtor's  right,  347. 
SUIT  ON  SHERIFF'S  BOND, 

by  a  third  person  disturbed  or  dispossessed,  550,  552. 

for  breach  of  official  duty,  550. 

for  trespass,  551. 

may  include  his  sureties  when  the  suit  is  for  abuses  under  color  of 
office,  551.     (See  Sheriff.) 
SUMMONS, 

issued  with  the  petition,  36. 

ordinary  form,  128. 

acceptance  of,  128. 

cannot  be  substituted  by  seizure,  128. 

when  writ  of  attachment  served  on  debtor  is  a  substitute,  123. 

never  issued  in  a  general  proceeding  against  property,  129. 

directed  to  the  debtor,  129. 

should  state  the  time  of  the  required  appearance,  131. 

amendable  when  stating  the  time  erroneously,  131. 

erroneously  returned,  131,  132. 
SUNDAY, 

dies  non,  138.     (See  Day.) 
SURETY.    (See  Damages,  Dissolution  Bond,  Forthcoming  Bond, 

Sheriff.) 
SURRENDER, 

by  insolvent  debtor  to  trustees  to  pay  creditors  pro  rata,  213. 

trustees  of  such  assignment  not  garnishable,  213. 


INDEX.  639 

SURRENDER— C(??^/^•miff^. 

creditor  not  accepting  the  surrender  may  garnish,  214. 

should   await   the   conversion   of  the  property   to  money 

before  garnishing  trustees,  215. 
(See  Assignment.) 

TERRITORIAL  LIMITS, 

to  jurisdiction,  334-340. 
TICKET  AGENT, 

not  generally  garnishable  for  money  collected  as  such,  244. 

TIME, 

of  attaching,  182-4.     (See  Day.) 
of  publishing  notice,  272-274 

of  making  levy  determines  rauk  of  lien  among  competing  attach- 
ments in  most  of  the  States,  485. 
of  summoning  garnishees  determines  the  rank,  etc.,  488-9. 
THREAT, 

to  assign,  indication  of  fraudulent  intent  to  defeat  ordinary  process, 
58. 
TITLE, 

of  purchaser  at  attachment  sale,  531, 
TOWNSHIP, 

not  garnishable,  331. 
TORT, 

a  cause  of  action  in  several  States,  63, 
TRAVERSE, 

of  the  affidavit,  469. 

and  plea  to  the  action,  consistent,  469, 
"where  not  allowed,  108. 
should  be  before  or  on  the  trial,  109. 
under  motion  or  plea,  427-432. 
of  the  attachment,  425-434,  468. 
requires  general  appearance,  426. 
grounds  foi-,  428. 

as  practiced  in  dilTerent  States,  427-431. 
as  to  the  necessary  evidence,  431-434. 
before  the  issue  of  indebtedness  has  been  tried,  468. 
after  dissoultion  by  bonding,  434-8. 
not  uniform  practice  434-6. 
held  to  be  waived  by  bonding,  437. 
held  to  be  not  waived,  436-7. 
of  the  garnishee's  answers.     (See  Charging  the  Garnishee.) 
TRESPASS, 

by  the  attaching  officer,  187. 

by  taking  debtor's  property  without  authority,  565. 

by  taking  goods  from  a  mortgagee,  146. 

in  attaching  partnership  goods,  155. 


640  IKDEX. 

TRIAL, 

of  the  general  issue,  4G8. 

of  the  principal  and  ancillary  action,  4G9. 

of  inlerplea,  470-485. 

of  claim  filed  under  the  original  attachment,  477. 
TRUSTEE  PROCESS, 

similar  to  garnishment,  193.  (See  Garnishing.) 
TRUSTEES, 

of  absconding  or  concealed  debtor's  estate,  461. 

UNDERTAKING.     (See  Attachment  Bond.) 
UNIFORMITY, 

of  statute  authorizations  of  attachment  as  to  the  principal  grounds 
and  causes  of  action,  30-60. 
VACATION, 

of  attachment.     (See  Dissolution.) 
VARIANCE, 

between  petition  and  affidavit,  103. 

slight,  when  remediable,  261-3. 
VENDEE.     (See  Pukchaser.) 
WAGES, 

when  not  liable  to  garnishment,  203. 

WAIVER, 

of  service  by  the  defendant,  128. 
of  service  not  by  the  garnishee,  265. 
WARRANTY, 

of  title,  not  in  judicial  sales  to  execute  judgment  in   favor   Of  the 

judgment  creditor,  535. 
in  judicial  sales  when  they  are  not  in  execution  of  the  judgment, 
but  are  provoked  by  the  judgment-owner  of  the  property  to  be 
sold,  537. 
form  of,  not  prescribed,  543. 
WATER-CRAFT  ATTACHMENTS.    (See  Attaching.) 
WIFE.     (See  Married  Woman.) 
WITHDRAWAL,  394. 
WITNESS,  surety  released  to  become,  when,  124. 

WRIT  OF  ATTACHMENT,  132-147. 

its  validity  necessary  to  valid  judgment,  25. 
essentials  of,  25. 

may  be  issued  with  the  summons,  132. 
issued  upon  affidavit  and  bond,  25,  132. 
may  be  effective  though  debtor  not  summoned,  133. 
may  an.swer  as  summons  when  personally  served,  when,  128. 
is  judicially  issued,  though  by  the  court's  minister,  134,  138. 
void  without  judicial  order,  when,  135-6. 

issued  in  a  county  other   than   that  where   the   afHdavit  was  made, 
where,  136. 
•        varies  as  to  form  and  requisites  in  different  States,  136. 
should  contain,  what,  136-7. 


INDEX.  641 

WRIT  OF  ATT ACIUI'E'NT— Continued. 

may  be  delivered  by  the  clerk  to  the  plaintiff  or  to  the  executing 

otiicer.  137-8. 
should  be  delivered  io  the  order  of  the  tiling  of  the  affidavit,  13D, 

489. 
not  amendable,  as  of  right,  after  it  has  been  executed,  139-140. 
when  amendment  is  retroactive,  491-2. 
when  amendment  is  not  retroactive,  140. 
misnomer  corrected,  141. 
improvideutly  issued,  426. 
directed   against  no  specified  property   unless  the  attachment  be 

exceptional,  142. 
considered  as  a  preliminary  executii  n,  142. 
confined  to  debtor's  property  liable  to  execution,  143. 
protects  the  othcer  who  obeys  it,  if  valid,  144. 
does  not  protect  him  if  he  seize  a  stranger's  property,  144-5. 
does  not  protect  him  if  he  seize  property  in  the  lawful  possessioa 

of 'mortgagees,  146. 
does  not  protect  him  if  issued  by  a  court  without  jurisdiction,  136. 
amendable  as  to  the  parties,  but  not  third  persons,  when,  546. 
WRIT  OF  GARNISHMENT, 

where  required,  192. 
WRIT  OF   SALE, 

venditioni  exponas,  523. 
fieri  facias,  523. 


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